J^^^™ 


UNIVERSITY  OF  PENNSYLVANIA 


Marriage  and  Divorce 

Legislation  in 

Sweden 


BY 


JOHAN  THORSTEN  SELLIN 


A  THESIS 

PRESENTED  TO  THE  FACULTY  OF  THE  GRADUATE 

SCHOOL  IN  PARTIAL  FULFILMENT  OF  THE 

REQUIREMENTS  FOR  THE  DEGREE 

OF  DOCTOR  OF  PHILOSOPHY 

IN  SOCIOLOGY 


•.ii,  I- 


EXCHANGE 


14  DAY  USE 

..^rUSN  TO  DESK  FROM  WHICH  BORKOWIJD 

LOAN  DEPT. 


LD  2lA-60m-3,'65 
(F2336sl0)476B 


General  Library     . 
University  of  California 
Berkeley 


A-i 


UNIVERSITY  OF  PENNSYLVANIA 


Marriage  and  Divorce 

Legislation  in 

Sweden 


BY 


JOHAN  THORSTEN/  SELLIN 


A  THESIS 

PRESENTED  TO  THE  FACULTY  OF  THE  GRADUATE 

SCHOOL  IN  PARTIAL  FULFILMENT  OF  THE 

REQUIREMENTS  FOR  THE  DEGREE 

OF  DOCTOR  OF  PHILOSOPHY 

IN  SOCIOLOGY 


•I  •    •  '''•.' 


«       *      •  •       ^     I 


Copyright  1922  by 

JOHAN  ThORSTEN   SeLLIN 


V 


^<^'^ 


TABLE  OF  CONTENTS 

Part   I.     Marriage    and    Divorce    Legislation    in 
Sweden  to  1915 

Chapter  1.     The  Entrance  into  Marriage Page       7 

Chapter  2.     The  Dissolution  of  the  Marriage Page     32 

Chapter  3.     The  Legal  Status  of  the  Wife Page     40 

Part  IL    The  New  Marriage  Law. 

Chapter  4.     The  Entrance  into  Marriage Page  53 

Chapter  5.     Tlie  Dissolution  of  the  Marriage Page  74 

Chapter  6.     The  Legal  Status  of  the  Wife Page  86 

Part  III.     The  Social  Significance  of  the  New 
Marriage  Law. 

Chapter  7.     The   Social  Significance   of   the   New 

Marriage   Law    Page  101 

Bibliography    Page  1 19 

Appendix.     The  Marriage  Act  of  1920 Page  121 


5003iKi 


PART  ONE 


Marriage  and  Divorce  Legislation 
in  Sweden  to  1915 


CHAPTER  ONE 

THE  ENTRANCE  INTO  MARRIAGE 

Betrothal  ^^^^ng  peoples  of  Teutonic  origin  marriage  was 
originally  a  family  affair,  arranged  betweeen  the 
guardian  of  the  woman  and  her  suitor.  She  herself 
had  no  legal  power  to  choose  her  future  husband  but 
had  to  submit  to  the  judgment  of  her  relatives.  The  Chris- 
tian Church,  -with  its  conception  of  marriage  as  a  union  based 
on  mutual  agreement,  vigorously  opposed  this  procedure  and 
succeeded  in  imposing  its  ideals  on  the  nations  it  conquered. 
In  its  desire  to  supervise  the  private  life  of  its  members,  the 
Church  gradually  gained  control  of  the  entire  marriage  cer- 
emony. At  first  satisfied  to  bless  the  union  after  the  civil 
marriage  had  taken  place,  it  soon  demanded  that  the  ceremony 
be  performed  before  the  church  door  and  in  the  presence  of 
the  priest ;  it  was,  then,  only  a  matter  of  time  until  the 
ceremony  was  shifted  to  the  church  proper.  The  importance 
of  ecclesiastical  control  of  the  marriage  became  still  greater 
when  marriage  was  made  a  sacrament.  Complete  power 
over  the  ceremony  and  its  prerequisites  was  placed  in  the 
ecclesiastical  authorities,  and  the  Canon  Law,  which  regu- 
lated this  controlling  power,  received  a  recognition  as  uni- 
versal as  the  Church  itself. 

The  Canon  Law  was  not  entirely  uninfluenced  by  the 
secular  concepts  of  the  countries  it  came  to  dominate.  The 
inevitable  conflict  between  it  and  the  Civil  Law,  in  matters 
affecting  both  State  and  Church,  left  both  legal  systems 
changed.  The  civil  law  betrothal  received  a  place  in  the 
Canon  Law,  even  though  it  was  considered  inferior  to  the 
ecclesiastical  betrothal,  which  took  place  immediately  be- 
fore the  ceremony  and  provided  no  betrothal  period.  The 
Church  came  to  regard  the  civil  law  betrothal  with  a  great 
deal  of  interest  because  of  the  very  reason  that  it  provided 
an  interval,  which  facilitated  the  investigation  of  the  disabil- 
ities to  marriage.^ 

^Lagberedningens  forslag  till  revision  av  giftermdlsbalkcn  och  vissa 
dclar  av  drvdabalken,  I.,  p.  76. 


g.-  J.  .  *  »•  r  ■  Marriage  and  Divorce 

Influenced  by  the  teaching-s  of  the  Church,  the  Civil  Law- 
came  to  demand  the  woman's  consent  to  the  marriage.  The 
result  was  the  appearance  of  the  so  called  "free"  marriage, 
the  significant  feature  of  which  was  the  absence  of  the 
guardian.  The  custom  soon  arose  of  having  a  "chosen  guard- 
ian" give  the  woman  away  and  this  guardian  was  selected 
by  the  woman.  Since  the  ritual,  which  had  in  the  course  of 
time  developed,  practically  demanded  that  this  person  be 
able  to  read,  it  is  probable  that  the  priest,  who  used  to  be 
present  to  bless  the  union,  was  asked  to  officiate  in  this  new 
capacity.  From  this  it  was  but  a  short  step  to  his  taking 
charge  of  the  entire  ceremony,  which  resulted  in  its  transfer- 
ence to  the  interior  of  the  church,  a  development,  which 
seems  to  have  taken  place  at  least  in  Anglo-Saxon  countries. - 

In  the  Swedish  laws  of  the  early  Middle  Ages,  there  were 
still  traces  of  a  marriage  by  purchase,  which  must  have  been 
common  long  before.  In  principle,  however,  this  custom  had 
already  disappeared  by  the  time  the  legal  concepts  took 
definite  form  in  the  Provincial  Laws.^  These  laws  held  as 
necessary  elements  of  a  legal  marriage,  betrothal  and  a  wed- 
ding, followed  by  cohabitation.  The  betrothal  ceremony  was 
preceded  by  negotiations  of  a  financial  nature.  The  suitor 
must  show  that  he  was  able  to  support  his  wife  and  some- 
times he  must  guarantee  this  support  in  the  betrothal  con- 
tract.* The  dowry  was  also  decided  upon.  It  consisted  in 
money,  land,  or  personal  property  given  to  the  woman  by  her 
father;  if  the  marriage  was  disrupted,  it  was  to  be  returned 
to     her,     her     husband     controlling     it     during     the     marriage. 

^Howard,  G.  E.,  A  History  of  Matrimonial  Institutions,  vol.  I,  p.  276 
et  seq. 

^At  the  dawn  of  the  historical  era,  Sweden  was  divided  into  a  great 
many  shires  or  provinces,  "landskap",  inhabited  by  closely  related  peoples, 
governed  by  laws  of  their  own  making.  These  popular  laws  served  to 
guide  the  procedure  of  the  assemblies,  where  justice  was  dispensed.  Of 
the  nine  or  more  Provincial  Laws,  dating  back  to  the  12th  or  the  13th  cen- 
tury, the  Vastgota  and  Ostgota  Laws  are  the  oldest.  Increased  facilities 
of  communication  and  the  unification  of  the  provinces  into  one  kingdom 
made  it  possible  for  King  Magnus  Eriksson,  in  the  middle  of  the  14th 
century,  to  appoint  a  commission  to  codify  the  laws  into  a  general  law  for 
the  realm.  The  result  was  Magnus  Eriksson's  Country  Law,  later  fol- 
lowed by  his  Borough  Law.  The  latter  governed  the  towns;  the  former, 
the  countryside.  The  Borough  Law  remained  in  force  until  both  Town 
and  Country  got  a  common  code  in  1734.  The  Country  Law  was,  in  1442, 
supplanted  by  Christopher's  Country  I.aw. 

^Williams,  M.  W.,  Social  Scandinavia  in  the  Viking  Age,  p.  92. 


Legislation  in  Szveden  9 

The  morning  gift  was  also  decided  upon  at  this  time.  It 
was  to  be  given  by  the  man  to  the  woman  on  the  morning 
after  the  wedding  night  and  usually  consisted  of  money  or 
land,  sometimes  reaching  a  considerable  value.  The  suitor 
was  by  law  required  to  bind  the  bargain  by  gifts  to  the 
guardian  or  other  relatives  of  the  woman.  These  gifts  were 
often  symbolical  in  nature  and  represented  the  price  of  the 
transfer  of  the  guardianship  of  the  woman. ^ 

As  for  the  betrothal  ceremony  proper,  it  was  to  be  per- 
formed in  the  presence  of  witnesses.  The  father  or  the 
guardian  of  the  woman  placed  her  hand  in  that  of  the  groom 
and  affianced  her  to  him,  and  those  present  declared  that 
they  had  been  witnesses  to  the  betrothal.  This  act  had 
serious  legal  consequences.  It  gave  the  man  the  right  to 
have  his  bethrothed  delivered  to  him  when  he  claimed  her. 
If  the  guardian  failed  to  live  up  to  his  agreement,  the  suitor 
had  the  right  to  appeal  to  the  civil  authorities  for  aid.  The 
loss  of  the  gifts  given  to  the  woman  or  her  relatives  and, 
sometimes,  a  small  fine  were,  however,  the  only  punishment 
for  the  suitor,  if  he  changed  his  mind. 

The  wedding  was  the  act  which  signified  that  the  mar- 
riage was  completed.  According  to  the  Provincial  Laws,  not 
only  a  formal  ceremony  but  cohabitation  subsequent  to  such 
ceremony  gave  rise  to  a  union  with  full  legal  status,  a  con- 
cept which  survived  long  after  the  law  had  been  changed  and 
was  recognized  even  in  the  code  of  1734,  which  was  not  dis- 
placed until  the  law  of  191 5  was  passed. 

The  influence  of  the  Church  is  reflected  in  the  Provincial 
Laws.  By  the  time  of  their  codification,  the  "purchase 
money"  had  already  lost  its  character  as  such  and  consisted 
largely  of  gifts  to  the  woman  herself  instead  of  to  her  guardi- 
an or  other  relatives.^  Many  of  these  laws  also  prohibited 
a  guardian  from  arranging  a  marriage  for  his  daughter  or 
ward,  without  her  consent.  In  1216,  the  Church,  in  an  at- 
tempt to  control  the  ever  increasing  number  of  clandestine 
marriages,  extended   to  Sweden  an  order  requiring  that  no 

^Their  name,  the  miindr,  is  still  found  in  the  word  iormyndare,  guard- 
ian. 

*^The  Country  and  Borough  Laws  show  this  influence  even  stronger, 
specifying  no  gifts  to  be  made  to  either  the  guardian  or  other  relatives 
of  the  woman. 


10  Marriage  and  Divorce 

marriage  be  celebrated  by  its  servants  until  banns  had  been 
published.  The  unions  of  persons  who  failed  to  comply  with 
this  order  were  declared  illicit;  they  were  not  invalid.  The 
Provincial  Laws  seem  to  have  taken  this  order  into  account, 
since  many  of  them  stipulate  publication  without  making 
it  obligatory.  It  was  probably  regarded  as  a  necessary  pre- 
requisite to  the  religious  ceremony,  which  was  mentioned 
in  all  the  laws  with  the  exception  of  the  older  Vastgota  Law. 
The  practise  of  the  Church  undoubtedly  became  accepted 
until  most  people  had  banns  published  and  a  religious  cer- 
emony performed. 

rp.  The    Reformation,    which    received    official 

.  sanction  in  1527,  had  but  a  slight  effect  on 

Reformation  marriage     legislation.       The     problem     of 

clandestine  marriages  had  made  Luther  emphasize  the  im- 
portance of  ecclesiastical  betrothal  as  the  only  true  betrothal ; 
it  should  lead  to  an  immediate  marriage  and  should  not  be 
entered  into  without  the  consent  of  the  parents  of  the  candi- 
dates. He  believed  that  all  secret  betrothals  should  be  re- 
garded as  invalid,  except  possibly  in  cases  when  physical 
union  had  taken  place.  The  reformers,  on  the  other  hand, 
did  not  claim  that  a  religious  ceremony  was  absolutely  neces- 
sary for  the  consummation  of  a  valid  marriage.  Of  course, 
the  true  Christian  should  take  care  that  his  marriage  was 
duly  published  and  entered  into  at  the  church  door  and  at 
the  altar,  but  these  were  not  legal  rules,  only  recommenda- 
tions and  therefore  unenforceable.  It  was,  consequently,  the 
betrothal,  which  came  to  be  regarded  as  the  true  marriage 
by  the  Evangelical  churches,  a  union,  which  only  received 
its  confirmation  by  a  religious  ceremony,  a  concept  quite 
in  harmony  with  the  opinion  expressed  by  Luther  that,  "This 
is  a  marriage ;  I  am  yours  and  you  are  mine."^ 

As  far  as  the  institution  of  marriage  is  concerned,  the 
new  faith  received  its  first  expression  in  Sweden  in  the  Or- 
dinance of  Vasteras,  1527.  This  Ordinance  read  in  parts: 
"If  a  man  cohabits  with  his  betrothed,  he  shall  not  be  fined, 
since  there  is  between  them  a  right  marriage  before  God, 
neither  shall  he  divorce  her.  Should  he  desert  her,  the  law 
shall  punish  him."®     The  Church   Constitution  of   1572   con- 

'Quoted  by  LagberedningeHS  forslag  etc.,  I,  p.  79. 
^Ibid.,  p.  80. 


Legislation  in  Szvcdcn  11 

tained  a  similar  stipulation.  "Where  betrothal  has  taken 
place  in  the  presence  of  witnesses  and  with  gifts,  and  physic- 
al union  follows,  this  shall  be  regarded  as  right  and  proper 
before  God,  although  legal  (i.  e.  ecclesiastical)  betrothal  and 
a  religious  ceremony  have  not  followed.""*  What  a  remark- 
able likeness  between  this  post-Reformation  attitude  and 
that  expressed  in  the  old  civil  laws,  which  regarded  betrothal 
and  subsequent  cohabitation  as  the  only  absolutely  necessary 
elements  of  a  valid  marriage.  The  following  extract  from 
the  Constitution  may  also  be  of  interest  because  it  reflects 
the  attitude  of  the  Reformers :  "No  secret  contract  of  mar- 
riage shall  be  valid,  in  the  case  of  a  girl,  who  betroths  her- 
self without  the  consent  of  her  parents  or  guardian,  unless 
they  are  later  willing  to  recognize  the  betrothal,  an  action 
which  peradventure  must  follow,  if  cohabitation  has  taken 
place;  for  children  are,  according  to  the  command  of  God, 
subject  to  their  parents  in  this  as  in  all  matters.  However, 
parents  and  guardians  shall  not,  in  this  or  other  matters,  act 
with  force  or  compulsion,  for  rarely  does  a  good  marriage 
result,  when  one  is  forced  to  take  some  one  for  whom  neither 
love  nor  desire  exists."^" 

The  Church  Constitution  also  tried  to  carry  out  the 
recommendations  of  the  Reformers  by  attempting  to  sub- 
stitute for  the  old  civil  betrothal  an  ecclesiastical  one.  The 
latter  was  to  take  place  at  the  church  door  or  in  the  vestry 
just  before  the  religious  ceremony  was  celebrated  and  was 
to  replace  the  old  fashioned  custom  of  repeating  the  betrothal 
vows  at  the  church  door,  in  the  presence  of  the  priest.^^  The 
Constitution  was  frankly  contemptuous  of  "betrothals  that 
farmers  make"'-  and  stressed  the  importance  of  the  ecclesias- 
tical betrothal,  which  should  be  entered  into  regardless  of 
the  former.  This  attempt  to  change  the  practise  of  centuries 
failed  and,  in  1611,  the  clergy  capitulated.  Agreeing  that 
the  civil  betrothal  was  to  be  considered  valid,  they  simply 
advised  all  to  have  their  betrothals  executed  in  church  before 
the  congregation.^^ 

■•>Jbid. 

^ybid.,  pp.  80-81. 

^See  page  30. 

^^Lacjberedningens  forslag  etc.,  I,  p.  81. 

^mid,  p.  82. 


12  Marriage  and  Divorce 

The  influence  of  the  Reformation  left  prac- 
TJic  hcclesiastical  tj^ally  no  trace  in  the  Ecclesiastical  Law 
Lazi'  of  1686.  °^    1686.     Almost   the   only   evidence   of   it 

was  an  order  to  the  ministers  to  warn  all 
people  of  the  dangers  of  entering  "conditional  or  lengthy 
betrothals."  The  law  contained  no  rule  regarding  ministerial 
assistance  at  the  betrothal  but  admonished  the  people  to  in- 
form the  minister  about  it  in  good  season  that  he  might 
"warn  them  of  disabilities,  which  might  be  obstacles  in  their 
way."^*  Luther's  emphasis  on  parental  consent  is  reflected 
in  the  stipulation  that  not  only  the  woman  but  also  the  man 
should  have  the  consent  of  "those  concerned"  before  the 
betrothal  be  entered  into.  Refusal  to  give  such  consent 
could  be  tested  and  set  aside  by  the  court,  if  not  justified. 

As  to  the  form  of  the  betrothal,  the  law  required  that  it 
be  executed  only  in  the  presence  of  "two  honest  and  responsi- 
ble male  witnesses,  one  for  each  side,  in  addition  to  the  par- 
ents or  the  guardian. "^^     It  was  considered  performed  when 

"both  say  yes,  without  force  or  fear,  and  shake  hands 

even  though  there  be  no  gifts  given. "^"^  It  had  the  nature  of 
a  contract  of  marriage,  equally  binding  the  man  and  the 
woman.  The  consummation  of  the  marriage  by  a  religious 
ceremony  was,  of  course,  expected,  and  the  law  warned  the 
betrothed  against  a  premature  cohabitation.  But.... a  legal 
and  valid  marriage  could  be  entered  into  without  this  cer- 
emony. Physical  union,  subsequent  to  the  betrothal,  was  re- 
garded as  establishing  a  marriage,  which  should  be  complet- 
ed by  a  religious  ceremony,  but  the  validity  of  which  was 
in  no  way  impaired  because  the  candidates  failed  to  ask  the 
Church  to  bless  the  union.     If,  in  such  cases,  the  man  re- 

^^Ibid.  Although  the  law  seems  to  have  required  witnesses  for  a 
valid  betrothal,  practise  came  to  hold  written  and  even  secretly  performed 
betrothals  valid,  judging  from  the  following  Royal  Resolution  of  Oct.  22, 
1723.  "Betrothals,  which  take  place  after  fair  and  mature  thought  and  the 
consent  of  those  concerned  and  not  from  fear  or  force,  nor  due  to  drunk- 
enness, frivolity,  or  such  things,  should  not  be  regarded  as  incomplete, 
because  no  witnesses  were  present.  Personal  admission  and  written  dec- 
larations, which  have  been  prompted  as  above  mentioned,  should  be  as 
valid  testimony  as  legal  witnesses."     Ibid.,  pp.  83-84. 

^^Ibid.,  p.  84.       Cf  Williams,  M.  W.,  op.  cit.,  p.  94.     "Betrothal 

was  of  the  utmost  importance,  for  no  marriage  was  considered  legal  un- 
less preceded  by  a  formally  witnessed  agreement  regarding  the  dower  and 
the  mundr,  in  addition  to  a  plighting  of  troth." 


Legislation  in  Szvcdcn  13 

fused  to  grant  the  woman's  wish  to  have  a  ceremony  per- 
formed, the  diocesan  chapter^'  could  declare  her  his  wife. 
Should  he  be  dissatisfied  with  this  action,  he  could  appeal  to 
the  civil  courts. 

There  was  another  type  of  union,  which  had  as  great  legal 
force  as  the  betrothal,  namely,  cohabitation  after  promise  of 
marriage.  "If  a  man  tempt  a  girl  to  cohabit  with  him  after 
promising  to  marry  her,  he  shall,  according  to  God's  com- 
mand^**, be  duty  bound  to  marry  her  and  not  desert  her.  If 
he  deny  the  promise  and  cannot  be  persuaded,  he  shall  be 
referred  to  the  civil  courts,  there  to  free  himself.  If  he  ad- 
mit his  promise,  yet  desert  her,  she  shall  enjoy  the  same 
rights  as  a  betrothed  woman  and  he  shall  be  punished  as 
one,  who  without  cause  forsakes  his  betrothed.  But,  if  he 
has  not  reached  majority,  being  under  the  tutelage  of  par- 
ents or  guardian,  he  shall  not  be  forced  to  the  marriage 
without  his  parents'  consent."^**  The  usual,  though  by  no 
means  the  only  interpretation  of  this  paragraph,  seems  to 
have  granted  the  woman  the  right  to  have  the  marriage 
completed  by  a  religious  ceremony.  Refusal  by  the  man  to 
comply  with  her  wish,  caused  her  to  be  declared  his  wife ; 
he  might  even  be  given  a  prison  sentence. 
The  Civil  Code  According  to  the  Code  of  1734,  a  betrothal 
r -ty^A  could   take   place   in   two   ways;   either   by 

•^  oral  agreement  in  the  presence  of  witnesses, 

two  on  the  woman's  side  and  two  on  the  man's ;  or,  in  writ- 
ing, by  contract,  signed  by  the  man  and  the  woman,  or  by 
separately  written  promises   duly   exchanged. 

In  the  very  first  chapter  of  the  law,  we  find  the  stipulation 
that  "if  a  man  desire  to  establish  a  household,  he  shall  ask 
the  woman's  guardian  for  her  and  not  forcibly  take  her  nor 
secretly   entice  her  away."-'*     In  spite  of  this,   the  betrothal 

I'ln  conjunction  with  the  Bishop,  these  chapters  conduct  the  reHgious 
affairs  of  their  respective  dioceses.  They  are  composed  of  the  dean  of 
the  cathedral  parish  and  the  majority  of  the  professorial  lecturers  at  the 
state  college  of  the  cathedral  town.  (In  Uppsala  and  Lund,  the  university 
professors  of  theolog}^  take  the  place  of  the  "lectors",  and  in  Gothenburg, 
two  rectors  of  the  city  churches  are  members,  in  addition).  Although 
Stockholm  belongs  to  the  Archdiocese,  it  has  a  chapter  of  its  own,  headed 
by  the  rector  of  "Storkyrkan",  who  bears  the  title  of  "pastor  primarius". 
The  Court  and  Garrison  parishes  have,  besides,  a  chapter  of  their  own. 

^^Exodics,    22:16;    Deuteronomy,    22:28-9, 

^^Lagheredningens  for  slag  etc.,  I,  p.  87. 

''\Sveriges  Rikcs  Lag.  Giftenndlsbalken,  chapter   i,  paragraph  i. 


14  Marriage  and  Divorce 

seems  to  have  been  largely  a  matter  of  mutual  agreement, 
properly  witnessed.  The  Code  appears  to  have  been  inspired 
to  some  extent  by  the  old  Provincial  Laws.  The  number  of 
witnesses,  which  the  Ecclesiastical  Code  placed  at  two,  was 
doubled  in  accordance  with  the  old  civil  law  stipulation.-' 
Again,  the  suitor  was  urged  to  give  the  guardian  due  notice 
of  the  time  of  the  wedding.  Refusal  of  the  latter  to  deliver 
the  bride,  gave  the  bridegroom  a  right  to  ask  the  civil  author- 
ities for  assistance.  All  of  which  indicates  that,  in  form  if 
not  in  spirit,  the  Code  revived  the  old  Teutonic  betrothal 
in  which  the  woman  played  a  passive  role. 

The  Canon  law  concept  of  free  mutual  agreement  was  also 
recognized.  \'alidity  was  given  to  betrothal  by  a  written 
contract,  signed  by  the  candidates,  or  by  written  promises. 
Secrecy,  however,  was  not  favored.  Mere  promises  of  mar- 
riage or  secret  agreements  were  not  considered  binding  un- 
less they  were  followed  by  cohabitation,  and  even  then  a 
religious  ceremony  should  complete  the  marriage.  If  pub- 
lication of  banns  had  been  applied  for,  secret  agreements 
were  recognized  and  a  betrothal  was  looked  upon  as  ex- 
isting although  the  time  and  the  manner  of  its  actual  begin- 
ning were  unknown. 

The  importance  of  the  betrothal  lay  primarily  in  the  fact 
that  it  formed  an  efifective  bar  to  another  union  and  had  to 
be  dissolved  in  a  specific  manner.  If  both  the  man  and  the 
woman  desired  its  dissolution,  they  could  apply  to  the  di- 
ocesan chapter,  which  prom])tly  granted  their  wishes.  But, 
if  only  one  of  them  desired  it,  court  action  became  neces- 
sary. Should  the  court,  in  its  investigation  of  the  causes 
for  the  petition,  find  that  the  petitioner  was  chiefly  to  blame, 
the  dissolution  of  the  betrothal  would  be  decreed  but  the 
court  might  at  the  same  time  prohibit  the  petitioner  to  marry 
as  long  as  the  other  lived,  remained  unmarried,  or  remained 
unreconciled.--  This  prohibition  became  of  little  or  no  value, 
since  the  legal  rights  of  the  injured  betrothed  were  rarely 
exercised. 

With  the  law  of  1734  the  religious  ceremony   came  into 

2i"Now  a  man  wishes  to  bind  a  woman's  troth ;  then  shall  her 
guardian  be  with  her  and  four  witnesses,  two  on  the  man's  and  two  on 
the  woman's  side.  A  betrothal  is  then  legal."  Quoted  by  Lagberedning- 
ens  for  slag  etc.,  I,  p.  91. 

'^id.,  p.  95 


Legislation  in  Sivcdcn  15 

its  own.  No  marriage  with  full  legal  status  was  recognized 
unless  it  was  blessed  by  the  Church.-^  There  were,  however, 
unions  still  formed  without  that  blessing,  unions  based  on 
the  old  custom,  which  regarded  betrothal  as  the  only  cer- 
emony necessary  for  a  legal  marriage.  The  drafters  of  the 
Code  faced  the  task  of  fixing  the  status  of  these  unions, 
which  were  no  longer  considered  proper.  They  found  it 
necessary  to  create  a  kind  of  inferior  marriage,  an  "incomplete 
marriage",  a  rather  curious  institution,  which  has  no  exact 
counterpart  in  modern  laws. 

An  incomplete  marriage  arose,  when  physical  union  fol- 
lowed upon  a  betrothal  or  a  promise  of  marriage.  "If  the 
agreement  had  the  nature  of  a  betrothal,  a  marriage  existed 
as  soon  as  physical  union  had  taken  place,  even  though  the 
legal  effects  were  materially  strengthened,  in  case  one  of 
the  betrothed  asked  the  court  to  be  declared  the  other's  hus- 
band or  wife,  if  the  latter  was  unwilling  to  have  a  religious 
ceremony  performed.  Cohabitation  after  a  promise  of  mar- 
riage gave  rise  to  an  incomplete  marriage  only  if  the  union, 
on  the  woman's  petition,  was  given  legal  status  by  court 
decree,  or  if  the  man  'churched'''*  the  woman  as  his  wife  or 
betrothed."-^  There  were,  consequently,  four  distinct  types 
of  incomplete  marriages.  As  far  as  the  woman  was  concern- 
ed, the  important  effect  of  this  kind  of  union  was  that  she 
gained  marital  property  rights  in  the  man's  estate. 

Court  practise  differed  greatly  with  regards  to  unions 
arising  from  cohabitation  after  promise  of  marriage.  Gradu- 
ally the  custom  arose  of  declaring  the  promise  binding  and 
giving  the  woman  marital  property  rights  in  the  man's  prop- 
erty, instead  of  declaring  her  his  wife.  This  arrangement 
was  not  satisfactory  to  the  clergy,  since  it   did   not  force  a 

-Hi  is  interesting  to  note  that  although  the  ceremony  had  now  be- 
come the  legal  foundation  for  a  marriage,  thereby  displacing  the  betrothal, 
the  latter  nevertheless  formed  a  bar  to  another  marriage. 

2*A  ceremony,  the  origin  of  which  goes  back  to  the  days  of  purifica- 
tion mentioned  in  Leviticus.  The  teachers  of  the  Church  held  that  a 
woman,  who  had  given  birth  to  a  child,  should  remain  at  home  for  six 
weeks  and  then  appear  in  church  to  give  thanks  to  the  Lord.  This  custom 
gained  in  force  in  the  Christian  Church  and  gave  rise  to  the  "churching." 
The  Ecclesiastical  Law  of  1686  prescribed  a  six-week  period,  which  was, 
by  Royal  proclamation  of  1866,  cut  to  four  weeks  "or  earlier".  Refusal 
by  the  woman  to  follow  this  rule  led  to  her  being  requested  by  her  pastor 
to  comply  with  the  demands  of  good  Christian  order  and  custom.  In 
practise  she  was  given  free  decision.  Nordisk  Familjebok,  article  on 
Kyrkotagning. 

25Ekeberg,  B.,     Aktcuskapslagstiftningcn,  p.   11. 


16  Marriage  and  Divorce 

marriage.  In  1755  a  decree  was  issued,  declaring  in  sub- 
stance that,  when  the  court  had  pronounced  the  promise 
binding  and  the  couple  could  not  be  induced  by  their  pastor 
to  have  a  religious  ceremony  performed,  they  were  to  be  re- 
ported to  the  diocesan  chapter,  which  warned  them  not  to 
oppose  their  pastor's  wishes.  If  these  warnings  failed,  the 
matter  was  to  be  referred  to  the  court  and  if  no  cause  could  be 
shown  why  the  marriage  should  not  take  place,  the  court 
was  to  order  its  performance  on  pain  of  imprisonment.  If 
this  did  not  succeed  in  convincing  the  couple,  the  diocesan 
chapter  was  to  try  again  its  powers  of  persuasion  and  after 
that  the  government  was  given  an  opportunity  to  solve  the 
problem.     Its  action  was  not  suggested  by  the  decree.-" 

It  was  not  in  agreement  with  the  spirit  of  the  age  to  use 
compulsory  means  to  establish  families  and  in  1810,  upon  the 
request  of  the  Riksdag,  the  above  decree  was  revoked.  Later 
an  order  was  issued,  according  to  which  a  couple,  which 
refused  to  have  the  ceremony  performed  when  the  court 
had  declared  the  promise  binding,  was  to  be  summoned  be- 
fore the  cathedral  chapter  and  requested  to  marry.  If  they 
refused  and  both  desired  the  dissolution  of  their  betrothal, 
the  chapter  was  to  issue  a  letter  of  dissolution ;  in  other 
cases  the  matter  was  referred  to  the  King  for  decision. 
Neither  the  rights  of  the  woman  nor  those  of  the  children  were 
to  'be  affected  by  the  dissolution.-^ 

Like  betrothal,  all  the  incomplete  marriages  formed  a 
bar  to  another  marriage  and  had  to  be  dissolved  before  the 
latter  could  take  place.  Although  the  original  purpose  of 
this  singular  institution  was  to  force  the  completion  of  a 
marriage  by  a  religious  ceremony,  which  would  sanctify 
the  relationship,  this  purpose  was  displaced  by  the  aim  of 
securing  economic  protection  for  the  injured  person,  usually 
the    woman.      "According    to    the    letter    of    the    law.    these 

unions  were  real  marriages,  but   in   reality  they   filled 

functions  quite  different  from  those  of  forming  the  legal 
basis  for  marital  life.  Their  real  purpose  was to  pro- 
vide opportunity  for  redress  for  the  one,  who  had  been  de- 
serted by  her  (or  his)  lover,  although  the  relationship  had 
become  highly  intimate."-* 

^^Lagberedningcns  forslag  etc.,  I,  p.  loi. 
^''Ihid.,  p.  102. 
^^Ibid.,  pp.  Iio-lil. 


Legislation  in  Sweden  17 

Impediments  to     '^^  ^^^^^  *^^  welfare  of  the  group  all  peo- 
.  pies    have    found    it    necessary    to    regulate 

arn  ge.  ^.j^^  entrance  into  marriage  for  the  purpose 

of  eliminating  those,  who  might  by  their  union  harm  the 
group.  Among  primitive  peoples,  relationship,  either  actual 
or  fictitious,  has  always  proved  an  important  bar  to  marriage 
and  the  Canon  Law,  which  contained  the  legal  concepts  of 
the  Church  Fathers  and  their  successors,  forbade  the  mar- 
riage of  persons  physically  related  to  the  seventh  degree,  as 
well  as  those  spiritually  related,  such  as  godfather  and  god- 
child, baptizer  and  baptized,  etc.  Marriages  between  those 
in  holy  orders  or  under  solemn  vows,  as  well  as  marriages 
between  Christians  and  unbelievers  were  held  void  by  the 
Canon  Law,  which  also  considered  adultery,  adoption,  and 
alifinity  impediments  to  marriage. 
.  The  Ecclesiastical  Law  of  1686  prohibited 

^  ■  the    marriage    of    person    below    legal    and 

mature  age,  but  this  age  was  not  stipulated  nor  had  any 
previous  law  settled  it.  It  is  to  be  presumed  that  the  man's 
age  of  majority,  fifteen,  was  meant.  The  Commission,  which 
drafted  the  law  of  1734,  planned  to  raise  this  age.  The  various 
preliminary  drafts  contained  suggestions  of  placing  it  at 
eighteen  or  twenty-one,  the  marriageable  age  and  the  age  of 
majority  being  made  to  coincide  each  time.  In  1721,  a  Royal 
proclamation  placed  the  man's  age  of  majority  at  twenty-one 
and  this  age  was  incorporated  in  the  law  of  1734,  although  an 
earlier  marriage  could  be  permitted  by  Royal  dispensation.^** 
In  1853,  the  Riksdag  made  an  attempt  to  have  the  man's  mar- 
riageable age  raised  to  twenty-five.  It  failed  on  the  argu- 
ment that  his  marriageable  age  would  then  be  much  higher 
than  his  age  of  majority,  an  undesirable  feature.^**  In  1892, 
the  woman's  marriageable  age  was  raised  from  fifteen  to 
seventeen.^^     Strange   to   say,   the    inconsistency,   which    the 

29During  the  decades  immediately  following  the  passage  of  the  law, 
several  changes  were  made  to  permit  the  sons  of  the  peasants  to  marry  at 
an  earlier  age  without  dispensation,  but  in  1841  the  law  was  restored  to 
its  original  form  in  this  respect. 

^^Lagberedningens  forslag  etc.,  I,  p.  134. 

^^The  female  Laplanders  were  not  included  in  this  act  and  could 
therefore  marry  at  fifteen.  The  failure  to  raise  their  age  as  well  seems 
not  to  have  been  based  on  any  belief  that  they  reached  maturity  earlier, 
but  simply  on  the  fact  that  the  conditions  of  life  among  these  nomads 
made  a  lower  age  desirable.  In  1745,  the  male  Laplanders  received  per- 
mission to  marry  at  seventeen.  Today  there  are  about  seven  thousand 
Laplanders  in    Sweden.     Ibid.,   pp.    139-140. 


18  Marriage  and  Divorce 

Riksdag  of  1853  fought,  of  having  the  man's  age  of  major- 
ity and  his  marriageable  age  differ,  did  not  arouse  any  criti- 
cism, when  the  woman's  marriageable  age  remained  at  seven- 
teen, while  her  age  of  majority  was  placed  higher. 

„        ,.       ,  .  The  position  of  the  guardian  in  early  Scan- 

Luaramnslup.  ,•        •  •  ^      i  1        11  'r 

'  dinavian  society  has  already  been  discuss- 

ed. It  was  he  who  disposed  of  his  daughter's  or  ward's  hand 
to  her  suitor  and  although  the  woman  was  later  given  power 
of  independent  choice,  the  guardian  remained  her  representa- 
tive. It  is  true  that  the  law  of  1734  required  the  man,  who 
wished  "to  establish  a  household,"  to  ask  "the  woman's 
guardian  for  her."  but  it  also  stipulated  that  her  consent  was 
necessary.  The  place  of  the  guardian  came  to  be  less  im- 
portant, particularly  after  1858,  when  an  unmarried  woman 
became  independent  at  twenty-five.  Below  that  age,  she  must 
have  her  guardian's  consent,  however,  a  situation,  which 
might  easily  be  made  difficult,  due  to  the  artificial  "order  of 
guardianship",  which  preserved  within  the  male  line  of  the 
family  the  right  to  give  the  woman  in  marriage.  As  a  result 
the  deciding  power  often  came  to  rest  in  the  hands  of  distant, 
sometimes  unknown  relatives."" 

pi      •    ]        J  The  law  of  1734  contained  no  express  stipu- 

...    ,  ..  lation   against   the   marriage   of  persons  af- 

fected with  certain  diseases  or  defects.  In 
its  discussion  of  betrothal,  however,  it  gave 
some  intimation  of  its  attitude  toward  such  unions.  As  causes 
for  the  dissolution  of  betrothals,  the  law  restated  the  para- 
graphs of  the  Ecclesiastical  Law,  which  permitted  such  dis- 
solution on  account  of  "incurable  and  infectious  diseases,  from 

32"A  father  shall  give  away  his  daughter  in  marriage,  and  her  mother 
may  give  him  advice  in  the  matter.  If  her  father  is  dead,  her  mother 
shall  take  counsel  with  her  blood  relations.  If  neither  father  nor  mother 
is  living,  the  guardian  appointed  by  her  father,  either  orally  or  in  writing, 
or  the  one  appointed  by  her  mother  in  counsel  with  her  relatives,  shall 
give  her  away. . .  If  they  are  not  found,  the  following  shall  give  her  away, 
in  the  order  given:  full  brother;  paternal  half  brother;  maternal  half 
brother;  all  of  these  shall  take  the  advice  of  her  grandfathers.  If  neither 
full  nor  half  brother  lives,  then  parental  grandfather;  maternal  grand- 
father; paternal  uncle;  or,  maternal  uncle.  If  they  are  not  found,  then 
the  one  closest  related  to  her  on  her  father's  or  mother's  side.  Are  the\' 
equally  close  to  her  in  relationship,  he  who  is  related  to  her  on  her 
father's  side,  man  and  not  woman,  shall  give  her  away,  after  having  taken 
counsel  with  her  trustee  and  her  nearest  relatives  on  her  mother's  side. 
If  no  male  relatives  are  living,  her  trustee  shall  give  her  away."  Para- 
graphs 2  and  3,  chapter  i,  Giftcrmdlsbalken,  Svcriges  Rikcs  Lag. 


Legislation  in  Sivcden  19 

which  one  of  the  betrothed  suffered  before  the  betrothal  or 
later  acquired,  such  as  leprosy,  epilepsy,  'senselessness', 
frenzy,  pocks  from  loose  living,  and  horrible  and  great  defects 
and  blemishes,  which  would  keep  a  person  from  working  at 
his  trade  or  occupation. "^^  The  Ecclesiastical  Law  also  stated 
that  if,  in  spite  of  such  disease  or  defect,  the  betrothed  desired 
to  remain  together,  permission  should  be  given  them  to  do  so 
"except  in  the  case  of  infectious  diseases,  when  a  sufficient 
time  shall  be  set,  during  which  attempts  shall  be  made  to 
cure  the  disease.""*  If  no  cure  resulted,  the  betrothal  was 
to  be  dissolved.  Incurable  infectious  diseases,  consequently, 
were  an  unconditional  impediment  to  the  marriage  of  the  dis- 
eased person,  according  to  the  Ecclesiastical  Law  of  1686. 

Although  it  enumerated  the  same  defects  and  diseases  as 
the  Ecclesiastical  Law,  the  Code  of  1734  contained  no  explicit 
stipulation  regarding  the  dissolution  of  a  betrothal  against 
the  wish  of  the  betrothed.  The  result  was  confusion  until  a 
Royal  letter  of  1757  interpreted  the  Ecclesiastical  Law  in 
response  to  an  inquiry,  which  called  attention  to  the  fact  that 
although  epilepsy  caused  the  dissolution  of  a  betrothal,  if 
either  candidate  admitted  the  existence  of  the  disease,  the 
law  did  not  make  clear  if  marriage  between  epileptics  was 
possible,  if  they  both  desired  it.  The  letter  instructed  the 
clergy  "to  inform  the  city  or  district  physician  of  the  matter 
before  publication  of  banns  takes  place  and  to  give  him  all 
the  circumstances,  which,  according  to  the  nature  of  the  dis- 
ease, are  known  or  can  be  ascertained  from  the  diseased  per- 
son's parents,  relatives,  or  acquaintances  in  town  or  parish, 
so  that  the  physician  in  question,  after  having  sent  this  in- 
formation and  his  own  opinion  to  the  collegium  medicmn^'^ 
for  ratification,  can  issue  a  reliable  certificate,  to  be  presented 
to  the  clergy,  that  the  epilepsy  is  not  of  'the  right  kind',  or 
epilepsia  idiopathica,  in  which  case  alone  the  person  can  not 
be  allowed  to  marry. "^*^  The  letter  seemed  to  be  prompted  by 
a  true  desire  for  a  eugenic  reform,  which  would  prevent  the 
propagation  of  those  suffering  from  "the  right  kind  of  epi- 
lepsy." It  pointed  out  that  this  kind  "should  not  be  con- 
founded   with    the    so    called    epilepsia    sympathica,    or    convul- 

^^•Lagheredningens  forslag    etc.,  I,  p.   154. 

3'The  Royal  Aledical  Board. 

^^Quoted  in  Lagberedningens  forslag  etc.,  I,  p.  172. 


20  Marriage  and  Divorce 

sions  and  twitchings,  which  often  look  like  epilepsy,  though 
due  to  other  causes.  It  can  be  distinguished  by  good  physi- 
cians and  cured  and  cannot,  therefore,  be  transplanted  to 
children  or  form  an  impediment  to  marriage." 

Epilepsy  was  not  the  only  sickness,  which  came  to  be 
regarded  as  an  impediment.  The  Instructions  to  the  Royal 
Medical  Board,  in  1797,  stated  that  when  the  Board  was  con- 
sulted regarding  the  nature  of  "inherited"  infectious  diseases 
and  their  effect  on  marriage,  such  inquiries  should  be  an- 
swered with  the  idea  in  mind  of  saving  the  nation  from  the 
curse  of  incurable  diseases.  In  practice,  however,  idiopathic 
epilepsy  alone  constituted  an  impediment  to  marriage,  aside 
from  such  psychic  ailments,  which  generally  affected  a  per- 
son's ability  to  make  valid  contracts. 

From  1904  on,  an  increasing  realizaton  of  the  importance 
of  public  health  caused  several  attempts  to  be  made  to  pre- 
vent the  marriage  of  persons  suffering  from  venereal  disease, 
in  its  infectious  stage  at  least.  During  the  session  of  the 
Riksdag  in  1904,  a  motion  was  made  to  institute  a  compulsory 
medical  examination  for  all  candidates  for  marriage  and,  in 
addition,  require  affidavits  from  two  trustworthy  friends  as 
to  the  general  health  of  the  candidates.  No  action  resulted. 
Again  in  1908,  a  motion  proposed  that  an  investigation  be 
made  with  a  view  of  ascertaining  the  advisability  of  requiring 
a  general  medical  certificate  of  a  physical  examination  made 
shortly  before  the  certificate  was  presented  and  of  prohibiting 
the  marriage  of  persons  afflicted  with,  or  in  certain  stages  of,  a 
disease,  particularly  insanity  and  venereal  diseases.  The 
Legislative  Committee  at  that  time  held  that  such  legislation 
would  infringe  on  personal  liberty  and  would  not  be  sup- 
ported by  public  opinion.  Another  reason  advanced  was 
purely  opportunistic.  It  was  feared  that  the  low  marriage 
rate  would  drop  still  lower  if  such  an  examination  were  made 
compulsory.  The  suggestion  was  made  that  education  in 
public  hygiene  would  be  much  more  likely  to  increase  a  feel- 
ing of  responsibility  and  a  voluntary  desire  for  medical  as- 
sistance, and  that  the  only  direct  result  of  such  a  law  would 
be  that  "the  individuals,  against  whom  the  law  was  directed, 
would  keep  on  infecting  others,  with  the  only  difference  that 
it  would  occur  outside  instead  of  within  the  marriage  rela- 
tion; the  children  thus  brought  into  the  world  would  be  ex- 


Legislation  in  Su'cdcn  21 

posed  to  greater  suffering  and  neglect  than  if  they  were  born 
of  legitimate  unions."^" 

r>       .       .  .  Certain  blood  ties  have  always  constituted 

'^  bars  to  marriage,  although  there  has  been  a 

steady  trend  toward  minimizing  their  importance.  Most  peo- 
ples have  had  prohibitions  against  unions  between  persons 
in  lineal  ascent  or  descent.  In  Christian  society  this  prohibi- 
tion reached  its  height  when  the  Canon  Law.  during  its  great- 
est period,  extended  it  to  include  members  of  collateral  lines 
to  and  including  the  seventh  degree.  Not  only  physical  rela- 
tionship but  also  a  spiritual  one,  arising  from  baptism,  con- 
firmation, etc.,  was  held  to  be  an  impediment  by  the  Canon 
Law.  The  severity  of  these  rules  was  finally  recognized  and 
in  121 5  the  Lateran  Council  reduced  the  physical  kinship  re- 
strictions to  include  the  fourth  degree,  which  made  it  im- 
possible for  two  persons  to  marry,  if  their  great  grandparents 
were  children  of  the  same  father  or  mother  or  both. 

In  Sweden,  the  above  decision  by  the  Lateran  Council 
seems  not  to  have  been  applied  for  some  reason  or  other.  In 
the  Church  Constitution  of  1572  we  still  find  marriages  pro- 
hibited "within  the  fifth  generation."  Due  to  laxity  of  en- 
forcement and  a  changing  public  opinion,  a  decree  of  1680 
declared  that  only  marriages  between  cousins  were  to  be  pro- 
hibited. The  King  also  reserved  to  himself  the  right  to  issue 
dispensation  even  for  such  union.  It  is  this  point  of  view 
which  the  Code  of  1734  reflects.  In  1845,  ^  Royal  proclama- 
tion declared  marriages  of  cousins  permissible  without  dis- 
pensation, leaving  as  the  only  bar,  up  to  the  present  law,  the 
relationship  between  aunt  and  nephew,  uncle  and  niece. 
Lineal  ascent  or  descent  has  always  proved  an  impediment  to 
marriage. 

Since  the  Church  held  that  physical  union  made  of  man 
and  woman  one  flesh,  not  marriage  alone  but  cohabitation  also 
gave  rise  to  a  relationship,  which  created  all  the  various  im- 
pediments that  a  regular  union  created.  These  impediments 
extended  just  as  far  for  one  of  the  cohabitants  as  the  impedi- 
ments of  blood  relationship  did  for  the  other.  Even  an  im- 
pediment in   the   second   and   third   degree  was   recognized.^^ 

3'^Quoted  by  Ibid.,  p.  159. 

38A  man  could  not,  for  instance,  if  his  wife  died,  marry  any  woman 
relative  of  his  wife's  former  husband  or  any  woman  related  by  marriage 
to  the  latter. 


22  Marriage  and  Divorce 

The  Code  of  1734  somewhat  modified  these  Canon  Law  regu- 
lations by  abolishing  the  third  degree  relationship  just  men- 
tioned. A  decree  of  1872  simplified  matters  still  further  by- 
recognizing  as  the  sole  impediment  of  affinity  relationship  by 
marriage  in  lineal  ascent  or  descent,  i.  e.  first  degree  relation- 
ships. The  Code  of  1734  contained  a  rather  curious  prohibi- 
tion based  on  this  spiritual  relationship,  the  so  called  ''con- 
fusio  graduum",  which  forbade  "the  son,  so  long  as  his  father 
lived,  to  marry  a  woman,  whose  daughter  was  or  is  his  father's 
wife." 

TT   J.      ,     ,  Although  the   Criminal   Law,  in   its  seven- 

teenth   chapter,    provided    punishment    for 
Marriage.  bigamy,  neither  the  Code  of  1734  nor  any 

other  law  expressly  prohibited  it. 

Period  of  According  to  the  Code  of  1734.  a  widower 

could  not  remarry  for  a  period  of  six  months 
Mourning.  ^^^^^  ^^^  ^^^^j^  ^^  j^j^  ^^.j^-^.  ^^^  ^j^^  widow 

the  period  lasted  a  whole  year.  The  sentiment  which  prompt- 
ed this  stipulation  was  expressed  in  the  Ecclesiastical  Law. 
which  ruled  that  "a  widow  should  mourn  her  deceased  hus- 
band one  year ;  a  widower,  his  wife  at  least  half  a  year."^^  For 
the  woman  the  waiting  period  served  still  another  purpose, 
that  of  assuring  paternity  by  forbidding  a  second  marriage  un- 
til a  child  by  her  former  husband  could  be  born. 
Assignment  of        ^he  Code  of  1734  forbade  a  widow  or  wid- 

ower  to  remarry  until  the  heirs  of  the  de- 

n  leri  ance.  ceased  spouse  had  been  given  their  respec- 

tive shares  of  his  estate.  A  Royal  decree  of  1818  warned  the 
ministers  not  to  perform  a  ceremony  until  documentary  evi- 
dence was  produced,  showing  that  the  estate  had  been  prop- 
erly divided.  The  Code  did  present  one  way  out  of  the  diffi- 
culty. If  the  matter  promised  to  be  the  subject  of  litigation, 
the  court  could  permit  the  person  involved  to  place  security 
for  the  amount  in  question.  This  done,  the  marriage  could 
be  performed. 

.,  J  Marriage    between    persons,    who    had   had 

^'  adulterous  relationship  with  each  other,  was 

prohibited  by  the  Code  of  1734.  The  dissolution  of  a  mar- 
riage, on  account  of  adultery,  freed  only  the  innocent  spouse ; 
the  guilty  one  could  not  remarry  without  the  other's  permis- 

^^Laghcredningens  forslag  etc.,  I,  p.  208. 


Legislation  in  Sivedcn  23 

sion  in  addition  to  that  of  the  King^.  The  death  or  the  re- 
marriage of  the  innocent  spouse  freed  him,  of  course,  but  even 
then  he  could  not  marry  the  person  with  whom  the  adultery 
had  been  committed.  In  this  fashion  the  law  attempted  to 
safeguard  the  life  of  the  innocent  spouse.'*" 

r     ,    •  .         The    Swedish    law    has    known    no    uncon- 

Impnsonment.         ,.  .        ,         ,  .,  •  •  •  ,  .  r 

ditional  prohibition  against  the  marriage  of 

persons  serving  prison  sentences  or  awaiting  execution.     As 
a  rule,  however,  such  marriages  have  not  been  permitted. 
Publication  When    the    Church   began   to    exercise   full 

control    over    the    marriage    institution,    it 
^"  ^*  was    necessary    to    take    steps    that    would 

successfully  exclude  prohibited  marriages.  It  was,  there- 
fore, necessary  for  the  ministers  of  the  Church  to  investigate 
each  individual's  qualifications  for  marriage.  As  an  aid  to 
this  investigation  it  became  customary  to  publish  a  notice 
of  the  intended  marriage  with  a  request  that  information  re- 
garding possible  impediments  be  lodged  with  the  minister. 
This  practise  was  given  legal  sanction  in  Sweden  by  a  Papal 
letter  of  April  5,  1216,  which  made  publication  a  necessary 
prerequisite  to  a  religious  ceremony.  In  addition,  the  let- 
ter contained  definite  instructions  to  the  clergy  regarding  the 
scope  of  the  investigation  and  the  method  of  procedure. 

The  preliminaries  to  the  publication,  as  developed  up  to 
the  law  of  191 5,  were  as  follows.  If  a  couple  desired  to  have 
their  marriage  consummated  by  a  ceremony,  they  must  first 
secure  the  publication  of  banns  by  personal  application  to 
the  rector  of  the  parish  where  the  woman  was  registered. 
He,  then,  searched  the  parish  records  for  possible  impedi- 
ments, aided  in  some  cases  by  documentary  evidence  brought 
by  the  betrothed,  such  as  affidavits  regarding  the  condition 
of  the  estate,  if  the  applicant  had  been  previously  married. 
Failure  to  find  any  impediments  in  the  parish  records,  made 
it  incumbent  upon  the  minister  to  issue  banns,  which  were 
published  the  following  three  Sundays  from  the  pulpit  of 
the  parish  church,  immediately  after  the  sermon.  If  any 
one  knew  of  an  impediment  to  the  marriage,  information  was 
to  be  given  to  the  minister,  in  the  presence  of  two  witnesses. 
The  informant  was  also  to  place  security  for  all  damages 
and  costs,  which  he  might  incur  as  a  result  of  court  action, 


*^Ibid.,  pp.  221-222. 


24  Marriage  and  Divorce 

which  was  assured,  since  the  informant  had  to  swear  out  a 
complaint  against  the  offender.  If  the  court  failed  to  see 
the  justice  of  the  protest,  the  informant  was  fined  and  had 
to  pay  the  costs,  which,  of  course,  discouraged  all  protests 
born  of  malice  or  spite.  Usually  the  information  was  lodged 
because  the  coming  marriage  infringed  upon  some  one's  pri- 
vate rights,  such  as  the  right  of  a  woman  to  be  declared  the 
wife  of  the  man,  in  case  he  had  cohabited  with  her  after 
promise  of  marriage.  If  the  matter  was  taken  to  court,  the 
minister  could  do  nothing  but  await  the  result.  He  could 
neither  issue  a  certificate  of  publication  nor  perform  a  mar- 
riage until  the  candidates  could  present  proof  that  the  im- 
pediment had  been  removed.  A  judicial  settlement,  however, 
was  of  rare  occurrence  and  usually  the  minister  was  able 
to  arrange  the  matter  amicably  without  recourse  to  the  civil 
authorities. 

After  the  publication  had  been  completed,  the  minister  was 
again  supposed  to  inquire  into  the  matter  of  disabilities  and, 
if  he  found  none,  issue  to  the  betrothed  a  certificate  of  pub- 
lication, which  gave  them  the  right  to  have  a  ceremony  per- 
formed. The  certificate  stated  that  publication  in  due  form 
had  taken  place  and  that  no  impediments  to  the  marriage 
existed. 

Since  the  certificate  was  issued  in  the  parish  where  the 
woman  was  registered,  it  was  necessary  for  the  minister  to 
know  the  man's  qualifications,  should  he  happen  to  live  in 
some  other  parish.  The  law,  therefore,  required  the  man 
to  bring  a  transcript  of  the  records  of  his  parish,  issued  by 
its  rector,  and  containing  information  as  to  his  name,  ad- 
dress, occujDation,  age,  other  circumstances  affecting  his 
right  to  have  a  religious  ceremony  performed,  and  a  record 
of  previous  marriages  with  the  dates  and  causes  of  their 
dissolution.  Finally,  the  transcript  had  to  contain  a  declara- 
tion that  its  possessor  was  free  to  marry.  This  document 
had  to  be  presented  to  the  minister  to  whom  the  applica- 
tion for  publication  Avas  made.  If  the  man  was  unknown,  a 
foreigner,  for  instance,  he  had  a  thorny  path  to  travel.  The 
Ecclesiastical  Law  of  1686  ruled  that  if  an  unknown  man 
applied  for  publication,  he  must  present  to  the  minister  oral 
or  written  testimony  by  trustworthy  men,  vouching  for  his 
life  and  circumstances.  This  rule  was  made  still  more  rigor- 
ous by  a  Royal  decree  in  1791,  which  declared  that  if  legal 


Legislation  in  Szveden  25 

proofs  of  such  a  person's  circumstances  did  not  exist,  the 
applicant  must  insert  a  notice  in  the  general  newspapers  of 
the  Kingdom,  giving  a  full  statement  of  the  case,  including 
the  name  and  address  of  the  minister  to  whom  information 
regarding  impediments  should  be  sent.  If  no  information 
was  received  by  the  latter  within  a  year,  he  was  free  to  act.*^ 
A  modification  of  this  ruling  was  made  in  a  statute  of  1898, 
which  declared  that  "a  Swedish  man  or  a  Swedish  woman, 
who  wishes  to  marry,  but  cannot,  according  to  the  Ecclesias- 
tical Law,  prove  the  absence  of  disabilities,  shall  publish  his 
intentions  in  a  notice,  inserted  three  times  in  the  general 
newspapers  and  giving  complete  information  as  to  his  name, 
age,  place  of  birth,  places  where  he  has  resided,  name  and 
address  of  the  pastor  to  whom  information  regarding  impedi- 
ments should  be  sent,  and  the  time  limit  for  the  lodging  of 
this  information.  This  time  shall  not  be  shorter  than  six 
months  if  the  applicant  has  lived  outside  the  Scandinavian 
countries  and  Finland ;  in  other  cases,  not  shorter  than 
three  months  from  the  date  of  the  last  notice.  If,  within 
this  time,  the  minister  in  question  has  received  no  notice 
of  impediments,  nor  discovered  any  other  means  he  may 
issue  banns  in  due  form."*-  This  act  had  obvious  drawbacks, 
particularly  for  visiting  Swedish-Americans,  and  in  1910  a 
statute,  superseding  all  previous  legislation,  stipulated  that  a 
Swedish  man  or  a  Swedish  woman,  who  applies  for  publica- 
tion, may  prove  ability  to  do  so  by  a  certificate  from  a  min- 
ister in  the  Kingdom  or  one  serving  a  Swedish  congregation 
abroad.  If  this  were  impossible,  freedom  to  marry  might 
be  proved ;  either  by  the  oral  or  written  testimony  of  two 
Swedish  or  alien  persons,  whose  trustworthiness  was  known 
to  the  minister  that  entertained  the  application,  or  who  had 
been  vouched  for  by  the  Governor,  the  district  attorney,  the 
sheriff,  a  magistrate,  a  minister  in  a  Swedish  parish,  or  a 
Swedish  legation  or  counsel ;  or,  by  a  certificate  from  a  min- 
ister of  a  foreign  church  body,  if  certificates  from  that  body 
had  been  declared  valid  by  the  King."*^ 

Publication  in  the  usual  manner  could  be  dispensed  with  if 

*^Ibid.,  p.  245. 

*-Ibid.,  pp.  245-246. 

*^Ihid.,  p.  247.  A  Royal  decree  of  Nov.  10,  191 1,  gave  validity  to  cer- 
tificates issued  by  the  Evangelical  Lutheran  Augustana  Synod  of  North 
America. 


26  Marriage  and  Divorce 

the  man  was  called  to  arms  against  the  enemy  or  was  sent 
abroad  on  some  public  service.  In  these  cases,  all  three 
readings  could  take  place  on  one  Sunday  or  religious  holiday, 
although  the  ceremony  could  not  be  legally  performed  until 
two  days  later.  The  Ecclesiastical  LaAv  provided  for  a  sim- 
ilar publication  if  one  of  the  betrothed  lay  on  his  deathbed, 
and  although  the  Code  of  1734  lacked  this  stipulation,  it  was 
quite  generally  practised.** 
TV,      TvyTorfJoff^      Some    of    the    Provincial    Laws    prescribed 

1.  lie      IVlaFl  IH^C  .  .  ^        .  11* 

P  the  date  01  the  weddmg,  settmg  one  year 

after  the  betrothal  The  Ostgota  and 
Vastgota  Laws  actually  stipulated  a  legal  wedding,  day,  the 
Sunday  following  St.  ^Martin's  (Nov.  nth).  Late  fall  was 
much  favored  throughout  Sweden  and  a  preference  was 
shown  for  Tuesdays  or  Thursdays  during  new  or  full  moon.*^ 

"On  the  wedding  day  the  groom  journeyed  to  the  bride's 
home   and    there   the   transfer   of   the   woman's   guardianship 

took  place The  transfer  was  accompanied  by  solemn 

words followed    by    the    drinking    of    toasts.      All    took 

place   in   the   presence   of   relatives   and    often   of    the   whole 

village To   complete   the    marriage,   the   journey   to   the 

groom's  home  and  cohabitation,  proved  by  witnesses***,  were 
necessary.  On  the  morning  after  the  wedding  night,  the 
husband  was  to  give  his  wife  a  morning  gift,  unless  he  had 
cause  to  send  her  back.  Originally  a  small,  symbolical  gift, 
it  often  became  a  large  present  of  land,  etc.,  which  she  could 
keep  as  her  widow's  portion  at  the  man's  death,  while  if  she 
died  it  seems  to  have  remained  in  the  man's  possession."*^ 

We  have  already  noticed  that  the  old  Provincial  Laws 
contained  traces  of  the  religious  ceremony,  which  the  Church 

**Ibid.,  p.  272. 

^^Flodstrom,  I.,  Sverges  folk,  p.  370.  "Even  today  most  of  the  mar- 
riages in  Sweden  take  place  in  the  late  fall.  Thus  the  marriage  rate  for 
1903-1912,  per  year  and  thousand  of  inhabitants,  was,  for  October,  8.84; 
for  November,  8.97;  for  December,  12.30;  for  January,  2.19;  for  April, 
6.81 ;  for  June,  6.92,  and  other  months  vary  between  3.50  and  5.50."  Ibid., 
note. 

*^In  Skane,  the  southernmost  province  of  Sweden,  it  was  customary 
for  the  bride  and  groom  to  undress  in  the  presence  of  the  wedding  guests. 
During  the  wedding  night,  guests  were  also  supposed  to  visit  the  bedroom 
of  the  couple.  These  customs  survived  to  the  beginning  of  the  nineteenth 
century.  See  Westermarck,  E.,  The  History  of  Human  Marriage,  vol.  2, 
P-  437. 

*^Flodstrom,  I.,  op.  cii.,  p.  370. 


Legislation  in  S^vcdcn  27 

required.  This  ceremony  had  to  be  conducted  according  to 
the  ritual  of  the  State  Church,  since  members  of  alien,  i.  e., 
Catholic  and  non-Christian,  faiths  did  not  for  a  long  time 
have  the  right  to  establish  congregations  or  retain  a  clergy. 
On  January  24,  1781,  however,  a  Royal  decree  granted  such 
faiths  religious  freedom,  the  right  to  form  congregations, 
and  the  privilege  of  having  marriages  performed  in  accord- 
ance with  their  respective  rituals.  This  decree  was  extended 
the  following  year  to  members  of  the  Mosaic  faith,  limited, 
however,  to  marriages  within  that  faith.  Since  no  mention 
was  made  of  the  form  of  the  ceremony  to  be  used  by  Jews, 
it  is  presumed  that  their  time-honored  ritual  was  recognized 
as  sufficient.  The  restriction,  forbidding  the  marriage  of  Jew 
and  Gentile,  was  abolished  by  a  decree  of  1863  and  at  this 
time  a  civil  ceremony  made  its  first  appearance  in  Swedish 
law.  Such  marriages  were  to  take  place  before  certain  civil 
officials,  a  custom  which  has  since  that  time  been  extended 
to  include  ever  greater  groups. 

The  dissenter  law  of  1873,  regulating  marriages  between 
members  of  Christian  but  non-Lutheran  faiths  and  betv/een 
such  persons  and  members  of  the  State  Church,  and  decrees  of 
1880  and  1898  modified  the  law  until  the  condition  before  the 
passage  of  the  law  of  1908  was  as  follows : 

a.  The  civil  ceremony  was  obligatory  when  one  of  the 
betrothed  was  a  member  of  the  State  Church  and  the  other 
a  Jew ;  when  neither  belonged  to  the  State  Church  or  an 
alien  faith,  to  whose  clergy  the  King  had  given  the  right  to 
perform  marriages ;  and,  when  one  of  the  betrothed  was  a 
member  of  the  State  Church,  but  had  not  been  baptized  nor 
had  received  the  Holy  Supper  within  the  Church,  nor  religi- 
ous instruction  by  a  minister  of  the  Chvirch  and  by  him  pre- 
pared to  receive  the  sacrament  upon  confirmation. 

b.  The  religious  ceremony  was  obligatory,  when  both 
betrothed  were  members  of  the  State  Church,  had  been  bap- 
tized there,  and  had  received  the  Holy  Supper;  and,  when 
both  belonged  to  some  alien  faith,  whose  clergy  had  the 
right  to  perform  marriages. 

c.  Clioice  between  the  two  could  be  exercised,  when  one 
of  the  betrothed  belonged  to  the  State  Church  and  the  other 
to  an  alien  faith;  when  both  belonged  to  diflferent  alien  faiths, 
in  one  of  which  the  clergy  had  the  right  to  perform  a  cere- 
mony ;  and,  when  one  was  a  member  of  the  State  Church,  hav- 


28  Marriage  and  Divorce 

ing  neither  been  confinned  nor  having  partaken  in  the  Holy 
Supper  in  the  Church,  but,  having  received  religious  instruc- 
tion by  a  minister  of  the  Church,  had  been  found  by  him 
prepared  to  receive  the  sacrament  upon  confirmation;  this, 
of  course,  on  the  assumption  that  he  otherwise  had  a  rv^hi 
to  have  a  religious  ceremony  performed/^ 

These  rules  were  all  simplified  by  the  law  of  1908,  which 
made  the  civil  ceremony  elective  to  all,  while  reserving  the 
religious  ceremony  for  the  cases  when  both  betrothed  were 
members  of  the  State  Church,  had  received  religious  instruc- 
tion from  a  minister  of  the  Church  and  by  him  found  to  be 
prepared  to  receive  the  sacrament  after  confirmation ;  and, 
when  both  belonged  to  an  alien  faith  with  a  clergy  having 
power  to  perform  marriages. ^'^  The  right  to  a  religious  cer- 
emony was  denied  to  members  of  different  denominations, 
and  even  when  one  of  the  betrothed  was  a  member  of  the 
State  Church  and  the  other  belonged  to  some  foreign  Evan- 
gelical  Lutheran   Church,  a  rather  curious  distinction. 

The  limitations  made  in  the  law  of  1908  were  largely  due 
to  the  work  of  the  clergy.  In  1903,  the  Synodical  Congress, 
in  a  letter  to  the  King,  requested  that  "steps  be  taken  to 
make  such  changes  in  the  present  marriage  law  that  all 
Swedish  citizens,  for  whom  the  religious  ceremony  is  now 
obligatory,  may  be  given  the  right  to  choose  the  civil  form, 
if  they  so  desire;  and,  that  rules  be  made  at  the  same  time 
so  that  the  Church  may  not,  through  its  clergy,  be  called 
upon  to  celebrate  marriages,  which  would  cause  good  ec- 
clesiastical order  and  the  dignity  of  the  Church  to  suffer. "^^ 
This  question  had  been  raised  as  early  as  1868  by  P.  P. 
Waldenstrom  at  the  first  Synodical  Congress.  He  urged 
that  "ecclesiastical  publication  of  banns  and  a  religious  cer- 
emony should  not  be  granted  to  persons,  who  are  unable  to 
marry,   according  to   Matt.    19:9."^^     In    1883,   the   Congress 

*^Lagutskotfets  titlatandc  nr.  2ii  ipoo,  pp.  2-3. 

*'''The  King  granted  such  power  to  the  Methodist  Episcopal  Church, 
in  1876;  to  the  New  Jerusalem  Church,  in  1892  and  1893;  to  the  Roman 
Catholic  Church,  in  1895 ;  to  the  French  Reformed  Church  in  Stockholm, 
in  1895;  to  the  Anghcan  Church,  in  1899;  and,  to  the  Rabbis  of  the  Syna- 
gogues in  Stockholm,  Gothenburg,  and  Malmo,  in  1909.  See  Laghcrcd- 
ningens  forslag  etc.,  /,  p.  283,  note. 

^*'Lagutskoitets  utldtandc  nr.  38,   1904,  p.  6. 

^^Ibid.,  nr.  30,  1908,  p.  9. 


Legislation  in  Sweden  29 

wrote  the  King  requesting-  legislation  to  the  effect  that  "a 
marriage  which  a  person,  who  had  voluntarily  caused  the 
dissolution  of  his  earlier  marriage,  without  being  provoked 
by  his  partner's  adultery,  desired  to  enter  into  during  the 
lifetime  of  his  former  spouse,  should  not  be  published  as  a 
Christian  union,  nor  be  given  confirmation  by  a  religious 
ceremony."^-  This  desire  to  exclude  certain  individuals  from 
a  religious  ceremony  was  best  expressed  in  the  above  men- 
tioned letter  to  the  King,  in  1903.  The  Synodical  Congress 
had  entertained  a  motion  asking  for  legislation,  which  would 
close  the  religious  ceremony  to  "persons,  whose  marriage  was 
called  adultery  by  Christ,  the  Lord  of  the  Church,  according 
to  Matt.  19:9,  Mark  10:11-12,  Luke  16:18,  and  First  Corinth. 
7:10,  and  therefore  in  opposition  to  the  laws  of  His  King- 
dom; [and,  to]  those  who  openly  declare that  they  do 

not  believe  in  the  teachings  of  the  Church  or  in  Christian- 
ity."^^ The  Congress  expressed  itself  entirely  in  sympathy 
with  the  second  part  of  this  motion  but  doubted  the  advisabil- 
ity of  recommending  the  first  part,  since  it,  from  the  point 
of  view  of  the  state,  would  make  the  civil  ceremony  a  puni- 
tive measure  for  the  persons  in  question  and  would  more- 
over establish  dual  legislation.  This  letter,  together  with  a 
communication  from  the  Riksdag  of  1904,  asking  for  a  re- 
vision of  the  law,  finally  led  to  the  statute  of  1908, 

The  -form  of  ^^  ^°  ^^^  form  of  the  ceremony,  the  Pro- 

vincial Laws  contained  some  provisions. 
the  ccre^nony.  ^pon  the  groom's  arrival  to  the  house  of 
the  guardian,  feasting  began  and  the  groom  afterwards  call- 
ed upon  the  guardian  to  make  his  "gift-speech"  (giftomal, 
now  found  in  the  Swedish  giftermal,  marriage).  The  latter 
then  gave  his  daughter  to  the  groom  with  words  like  these, 
prescribed  in  the  Country  Law  and  the  Provincial  Law  of 
Uppland :  "I  give  you  my  daughter  to  be  your  wife ;  I  give 
her  to  your  honor  and  to  half  of  your  bed,  to  lock  and  keys 
and  to  one-third  of  all  you  own  or  acquire  in  the  form  of  chat- 
tels, and  to  all  rights  found  in  the  Law  of  Uppland  given  by 
Saint  Eric ;  in  the  name  of  the  Father,  the  Son.  and  the  Holy 
Ghost."^" 

The   Church   rituals  of  pre-Reformation  days   in   Sweden 

^^Ibid.,  nr.  38,  1904,  p.  3. 
'^Flodstrom,  I.,  ufy.  cit.,  pp.  468-469. 


30  Marriage  and  Divorce 

showed  that  the  ceremony  consisted  of  two  parts,  the  first  of 
which  took  place  at  the  church  door  and  consisted  merely 
of  a  repetition  of  the  betrothal  vows  to  assure  the  priest  that 
there  was  mutual  agreement  to  the  union ;  the  bridal  mass  was 
then  read  in  the  church.  The  ritual  of  1529  gave  the  cere- 
mony a  somewhat  changed  form  and  in  1614  a  new  ritual  ap- 
peared, containing  for  the  first  time  an  actual  declaration  of 
consummation  by  the  minister.  The  ceremony  was  also,  in 
its  entirety,  transferred  to  the  church  proper  and  was  pre- 
ceded by  exhortations  to  the  couple,  similar  to  those  formerly 
read  at  the  betrothal.^^ 

According  to  the  Code  of  1734,  the  marriage  ceremony 
was  to  be  performed  by  a  minister  of  the  Swedish  Church. 
If  some  one,  not  a  minister  of  this  Church,  performed  it,  the 
law  suggested  that  it  be  followed  by  a  legal,  i.  e.  religious 
ceremony,  if  the  marriage  was  permissible.  Failure  to  have 
publication  made  in  due  order  seems  not  to  have  invalidated 
the  ceremony.  Although  the  law  did  not  specifically  pre- 
scribe it,  the  following  omissions  have  been  regarded  as 
nullifying  the  ceremony :  failure  on  the  part  of  one  of  the 
betrothed  to  be  present,  and  conditional  agreements  to  marry. 

The  celebrant  must  demand  a  certificate  of  publication  be- 
fore performing  a  marriage.  If  publication  had  been  made 
in  due  fashion,  it  was  not  incumbent  upon  him  to  make  an 
inquiry  regarding  impediments,  although  he  had  no  right  to 
perform  a  ceremony  if  he  knew  of  a  disability,  even  though 
a  certificate  of  publication  may  have  been  issued.  The  fact, 
however,  that  the  certificate  was  perpetual  made  it  sometimes 
hazardous  to  perform  a  marriage,  since  disabilities  might  have 
arisen  after  the  certificate  was  issued. 

The  law  of  1908  required  the  marriage  of  members  of  the 
State  Church  to  be  "performed  by  a  minister  of  the  Church, 
according  to  the  directions  found  in  the  Manual  of  the 
Church. "^^  The  marriage  of  members  of  any  other  church 
organization  was  to  be  performed  by  one  of  its  ministers  ac- 
cording to  the  ritual  of  that  Church.  The  civil  marriage  was 
to  be  performed  "in  the  presence  of  relatives  or  other  wit- 
nesses. The  official  shall  demand  the  man's  and  the  woman's 
affirmative     consent     and     declare    them     husband     and     wife.^' 

^'■'Lagbcredningcns  forslag  etc.,  I,  p.  82. 
""Hedren,  T.,  Lagtima  riksdagen  1908,  p.  92. 
''''Ibid.,  p.  91. 


Legislation  in  Sxi.'cdcn  31 

The  necessary  elements  of  the  ceremony  were,  therefore,  the 
presence  of  both  betrothed  before  the  celebrant,  their  affirma- 
tive consent,  and  the  declaration  making  them  husband  and 
wife. 

After  the  ceremony  it  was  necessary  to  register  the  mar- 
riage in  the  parish  record  where  publication  was  made,  no 
matter  which  ceremony  had  been  used.  In  the  case  of  the 
religious  ceremony,  this  was  the  only  official  record  made 
of  the  marriage,  but  in  the  case  of  the  civil  ceremony,  a  spe- 
cial record  was  to  be  kept  by  the  civil  celebrant  as  well.  This 
record  was  to  be  signed  by  witnesses,  if  the  marriage  took 
place  before  a  magistrate  or  the  district  attorney.  The  civil 
marriage  was,  consequently,  registered  twice.^^ 


CHAPTER  TWO 

THE  DISSOLUTION  OF  THE  IVIARRIAGE 

.         ,  According:  to  the  Canon  Law,  the  following^ 

Annulment  .     .      *  nr    i 

omissions  or  commissions  nullined  a  mar- 
riage :  failure  to  comply  with  the  legal  forms  in  entering  the 
marriage ;  failure  on  the  part  of  either  candidate  to  give  bind- 
ing consent,  due  to  lack  of  legal  power  to  act,  or  due  to  force, 
deceit,  or  mistake ;  and,  failure  to  respect  the  Canon  Law  dis- 
abilities. All  such  unions  were  regarded  as  having  never 
taken  place,  unless  the  legal  forms  had  been  carefully  fol- 
lowed, in  v/hich  case  they  were  voidable  and  not  null  ab  initio. 
If  one  or  both  candidates  acted  in  good  faith,  the  children  of 
the  union  were  considered  legitimate  and  the  innocent  candi- 
date given  about  the  same  rights  at  civil  law  as  if  the  mar- 
riage had  been  perfectly  valid. 

Early  laws  in  Sweden  make  no  distinction  between  void 
and  voidable  marriages.  The  Church  Constitution  of  1572, 
in  its  chapter  on  Divorce,  stated,  "In  every  case,  when  mar- 
riage is  concluded  without  law  or  permission,  it  shall  be  re- 
garded as  invalid  or  null."^  The  Ecclesiastical  Code  con- 
tained practically  nothing  to  indicate  that  the  principle  ex- 
pressed in  the  Canon  Lav.'  had  been  fully  understood.  Nehr- 
man,  in  his  "Inledning  til  then  swenska  jurisprudentiam 
civilem,"  published  in  1729,  made  a  clear  distinction,  however, 
between  annulled  marriages  and  those  dissolved  by  divorce. 
As  grounds  for  annulment  he  mentioned  certain  stipulations 
in  the  Ecclesiastical  Law,  such  as  bigamy,  impotence  exist- 
ing at  the  time  of  the  marriage,  forced  marriage,  marriage 
deceitfully  celebrated,  and  marriage  entered  into  by  mistake 
in  regard  to  the  virginity  of  the  bride.- 

The  Code  of  1734  contained  a  statement  of  principle  to 
the  eflFect  that  if  a  minister  celebrated  a  marriage  between 


^Lagheredningens  forslag  etc.,  I,  pp.  309-310. 
^Ibid.,  p.  310. 


Legislation  in  Sweden  3v3 

persons  not  allowed  by  law  to  marry,  the  marriage  was  void." 
It  apparently  referred  to  the  impediments  caused  by  relation- 
ship, lack  of  guardian's  consent  in  some  cases,  and  adulterous 
relations  between  the  candidates.  The  law  explicitly  men- 
tioned absolute  adultery  and  since  it  also  mentioned  that  no 
one  could  be  forced  into  a  marriage,  it  is  natural  that  a  forced 
marriage  was  regarded  as  null,  particularly  since  a  forced 
betrothal  was  so  considered. 

If  a  candidate  for  marriage  had  an  incurable  or  infectious 
disease,  which  he  deceitfully  concealed  while  "tempting"  some 
one  to  marry  him,  the  marriage  was  null  and  void  and  the 
culprit  lost  all  material  property  rights  in  the  estate  and  was 
assessed  damages  in  addition.  Of  course,  only  the  deceived 
spouse  could  apply  for  annulment  on  this  ground,  unless  the 
other  proved  that  he  lacked  his  full  mental  powers  at  the  time 
of  the  marriage. 

Marriage  by  mistake  or  through  deceit  could  be  annulled 
only  if  either  spouse,  during  the  betrothal,  had  had  sex  rela- 
tions with  some  other  person  than  his  bethrothed ;  if  the  ivouian 
had  had  such  relations  with  some  other  man  before  the  be- 
trothal; if  either  spouse  was  unable  to  perform  the  marital 
function*  or  had  an  incurable  or  infectious  disease;  or,  if  the 
man  had  deceived  the  woman  into  marrying  him  by  misrep- 
resenting his  name  or  status.^  The  children  of  all  annulled 
marriages  were  regarded  as  legitimate  but  the  woman  was 
not  allowed  to  retain  the  man's  name. 

On  the  whole,  the  question  of  void  marriages  was  never 
definitely  settled  until  the  present  law  was  passed.  In  pre- 
vious laws,  the  paragraphs  dealing  with  them  were  not  even 
found  in  the  same  chapter.  The  opinion  of  the  Law  Commis- 
sion that  "the  legislation  did  not  appear  to  have  reached  any 
consequential  or  clear  attitude  in  the  matter"  was  indeed  justi- 
fied.« 

^All  such  marriages  seem  not  to  have  been  considered  null.  Persons, 
who  married  within  the  legal  period  of  mourning  or  before  the  assignment 
of  the  inheritance,  did  not  suffer  annulment  of  their  marriage. 

*Actual  inability  was  meant,  not  sterility. 

^Chapter  13,  paragraphs  7  and  8,  chapter  4,  paragraph  6,  Gifiermdls- 
balken.     Sveriges  Rikes  Lag. 

^Lagberedningens  forslag  etc.,  I,  p.  311. 


34  Marriage  and  Divorce 

c  ^.  J      The  individualism,  which  marked  the  civil 

Separation  and  r    ,     t^  i  i  •.    ir  •     .1    • 

justice  of  the  Romans  showed  itself  in  their 

Uivorce.  marriage    institution.      The    free    marriage, 

which  came  into  common  use  during  the  Empire  made  a 
divorce  by  mutual  agreement  possible.  The  Mosaic  Law  and 
the  older  Teutonic  laws  recognized  this  privilege  for  the  man 
alone,  while  later  Teutonic  laws  included  the  woman  as  well. 
The  Christian  Church  did  not  share  this  point  of  view. 
iMarriage,  being  ordained  by  God.  was  a  sacrament,  which 
could  not  'be  broken.  In  accordance  with  the  teachings  of 
Jesus  and  St.  Paul,  it  became,  however,  customary  to  permit 
separation  on  the  ground  of  adultery,  but  the  marriage  bond 
could  not  be  dissolved  except  by  death.  This  ideal  the  Church 
tried  to  realize  in  Sweden  by  a  letter  from  Pope  Alexander  III 
in  1 161,  which  pointed  out  that,  "according  to  God's  com- 
mand and  the  apostolic  teachings,  a  man  shall  not  separate 
from  his  wife  except  in  case  of  adultery,  and  that  if  he  for 
such  cause  desert  her  and  marry  another  during  her  lifetime, 
he  shall  be  regarded  as  an  adulterer."^  It  is  doubtful  if  the 
Church  succeeded  in  carrying  out  this  doctrine  in  Sweden, 
at  least  during  the  early  Middle  Ages. 

The  Reformation  brought  a  change  of  attitude.  To  the 
Reformers  marriage  was  not  a  divine  institution  and  there- 
fore not  indissoluble.  Since  Jesus,  according  to  Matthew, 
permitted  divorce  on  the  ground  of  adultery,  the  reformers 
held  that  the  IMaster  Himself  did  not  regard  marriage  as  bind- 
ing for  life.  They  regarded  adultery  and  malicious  desertion 
as  grounds  for  divorce  and  these  grounds  were  found  in  both 
the  Church  Constitution  of  1572  and  the  Ecclesiastical  Law  of 
1686.  Jurisdiction  was  vested  in  the  cathedral  chapter,  al- 
though the  Ecclesiastical  Law  pointed  out  that  the  civil  courts 
were  to  act  first  by  meting  out  the  punishment  and  determine 
upon  the  other  consequences  at  civil  law. 

In  addition  to  this  absolute  divorce,  the  Ecclesiastical  Law 
also  mentioned  a  limited  divorce  or  separation  for  a  definite 
time  "from  l)ed,  board,  abode,  and  company."  This  separa- 
tion constituted  the  last  link  in  a  long  chain  of  events,  which 
although  commonly  practiced  had  not  heretofore  been  given 
legal  sanction.  It  was  preceded  by  warnings  from  the  rector 
and  the  cathedral  chapter,  imprisonment  or  other  punishment 

"Quoted  by  Ibid.,  p.  370. 


Legislation  in  Szveden  35 

imposed  by  the  courts,  and,  finally,  separation,  decreed  by 
the  cathedral  chapter,  publicly  proclaimed  in  church,  and  fol- 
lowed by  excommunication.  These  steps  were  taken  in  in- 
stances where  hatred,  bitterness,  and  anger,  had  arisen  be- 
tween husband  and  wife ;  they  were  not  to  be  considered  a 
substitute  or  a  necessary  prerequisite  for  a  divorce.  On  the 
contrary,  separation  was  a  form  of  punishment  designed  to 
hasten  reconciliation. 

The  Code  of  1734  reflected  about  the  same  point  of  view. 
It  contained  only  two  grounds  for  divorce,  adultery  and 
malicious  desertion.  The  courts  tested  the  cases  and  the 
cathedral  chapter,  bound  by  the  decision  of  the  court,  issued 
the  letter  of  divorce.  In  case  of  adultery,  the  mere  admission 
of  guilt  on  the  part  of  the  offender  was  not  sufficient ;  definite 
proof  was  required.  The  petitioner  must  not  have  been  an 
accessory,  nor  must  he  have  forgiven  the  faithlessness  of  his 
spouse.  Express  forgiveness  was  not  required,  cohabitation 
after  learning  of  the  faithless  act  being  interpreted  by  the 
court  as  forgiveness.  To  receive  consideration,  the  petition 
must  be  presented  within  six  months  from  the  date  the  peti- 
tioner learned  of  the  fact.  In  case  he  himself  had  been  guilty 
of  faithlessness,  his  petition  lost  its  force.  Should  the  inno- 
cent spouse  fail  to  begin  action,  the  district  attorney  was  em- 
powered to  do  so. 

Desertion  was  considered  a  ground  for  divorce  only  when 
the  deserter,  "out  of  malice  and  aversion,"  had  left  for  parts 
unknown  or  had  gone  to  a  known  place  abroad  with  no  in- 
tention of  returning  to  his  family.  If  he  had  left  for  an  un- 
known place  and  divorce  had  been  applied  for  on  that  ground, 
the  court  was  instructed  to  have  notices  read  in  the  churches 
of  the  nearby  counties  and  parishes,  exhorting  the  deserter 
to  return  within  a  year  to  appear  before  the  court.  Before 
ordering  the  reading  of  such  notices,  however,  "the  judge 
must  have  received  assurances  through  the  clergy  that  the 
person  in  question  had  really  deserted  his  spouse ;  he  must 
also  have  made  inquiries  as  to  his  whereabouts,  the  causes 
for  his  absence,  and  the  tenor  of  his  earlier  family  life."^ 
Failure  to  heed  the  summons  of  the  court  caused  the  divorce 
to  be  granted. 

«Royal  letter  of  Feb.  4th,  1818.     See  Sveriges  Rikes  Lag.   Schlyter's 
ed.,  1886,  p.  17. 


36  Marriage  and  Divorce 

If  the  husband  left  home  with  the  intention  of  returning, 
yet  remained  away,  the  deserted  wife  could  receive  permis- 
sion to  remarry  after  six  years  or  earlier,  if  the  court,  after 
due  investigation,  deemed  it  proper.  A  divorce,  however, 
could  not  be  granted  her.  The  result  was  that  if  the  absent 
husband  returned  and  gave  valid  excuse  for  his  absence, 
showing  that  he  was  unable  to  communicate  with  his  wife,  he 
could  resume  his  place  at  her  side,  while  the  second  husband 
had  to  leave,  unless  it  was  otherwise  agreed.  Upon  with- 
drawal, the  latter  was  free  to  remarry.* 

As  to  the  treatment  of  quarrelsome  couples,  the  law  pro- 
vided either  fines,  twice  imposed,  if  husband  and  wife  could 
not  live  peaceably  together  after  being  given  warnings ;  or, 
separation  from  bed  and  board,  which  was  to  go  into  elTect  if 
the  former  punishment  failed. 

After  the  passage  of  the  law  of  1734,  it  became  customary 
for  the  King  to  grant  absolute  divorce  by  dispensation  to 
people,  who  had  already  been  granted  separation  from  bed 
and  board.  This  practise  was  embodied  in  law  by  a  decree 
of  1810,  which  materially  enlarged  the  opportunity  for  sever- 
ing the  bonds  of  matrimony.  It  was  stipulated  that  divorce 
could  be  gained,  either  by  court  decision  or  by  Royal  dis- 
pensation. Upon  the  petition  of  either  spouse,  the  court 
could  grant  a  divorce  if  the  petitioner's  spouse  had  been 
sentenced  to  life  imprisonment  or  exile,  or  had  been  found 
by  the  court  to  have  plotted  or  staged  an  attempt  upon  the 
petitioner's  life ;  if  he  had  become  insane  and  had  remained 
so  uninterruptedly  for  a  period  of  three  years  without  any 
hope  for  permanent  recovery;  or,  if  he  were  guilty  of  adult- 
ery or  malicious  desertion.  The  decree  did  not  give,  in  any 
definite  manner,  the  instances  when  the  King  could  act.  The 
general  rule  was  that  an  appeal  for  divorce  by  dispensation 
might  be  made  "when  other  causes  appear",  i.  e.  for  any  cause 
deemed  sufficient  by  the  King.^"  The  decree  mentioned, 
specifically,  the  following  grounds:  a  death  sentence  or  per- 
manent loss  of  civil  rights,  even  though  the  King  may  have 
granted  a  pardon  or  restored  the  rights  in  question;  a  sen- 

^Sveriges  Rikes  Lag.   Giftcrmalshalkcn,  chapter   13,  paragraph  6. 

^^'Of  course,  wherever  the  King  is  referred  to  in  this  monograph,  it 
is  to  be  remembered  that  his  dispensations  and  decrees  etc.  are  not  per- 
sonal, but  decided  by  some  government  department  or  official  and 
issued  as  an  administrative  order. 


Legislation  in  Szvcden  37 

tence  for  some  brutal  or  deeply  dishonoring  crime;  a  sentence 
to  penal  servitude  for  a  certain  number  of  years;  wasteful- 
ness; drunkenness;  violent  temper;  and,  a  difference  in  tem- 
perament and  opinion,  which,  after  numerous  eruptions,  grad- 
ually turns  into  disgust  and  hatred.  "  With  the  exception  of 
the  first  of  these  grounds,  a  Royal  dispensation  did  not  lead 
to  an  immediate  divorce,  unless  all  the  various  degrees  of 
warnings  mentioned  in  the  Ecclesiastical  Law  had  been  em- 
ployed. Important  is  the  fact  that  the  old  concept  of  guilt, 
as  necessary  for  a  divorce,  had  partially  disappeared.  In 
many  cases,  mutual  feelings  of  hatred  implied  no  guilt  on 
the  part  of  either  spouse,  nor  did  insanity. 

A  decree  of  i860  greatly  modified  the  procedure  in  re- 
spect to  "quarrelsome  couples".  Such  couples  were  to  be 
warned  by  the  rector  of  their  parish,  either  when  he  learned 
of  their  disagreements  or  when  they  petitioned  him.  If  his 
warnings  carried  no  weight  with  them,  they  were  summoned 
to  appear  before  the  deacons.  Should  this  have  no  effect 
on  their  relationship,  the  court  was  to  grant  a  year's  separa- 
tion from  bed  and  board.  If  found  desirable,  the  court  could 
at  the  same  time,  on  pain  of  imprisonment,  forbid  any  com- 
munication  between    the   spouses   during  this   period.^- 

Separation  from  bed  and  board  did  not  mean  a  division 
of  the  property.  In  each  separate  case,  the  court  determined 
what  action  should  be  taken  in  regard  to  the  joint  property 
and  to  what  extent  mutual  support  should  be  granted.  The 
disposal  of  the  children  was  also  effected  by  the  court.  Di- 
vorce, on  the  other  hand,  gave  to  each  spouse  the  right  to 
withdraw  his  private  property,  while  the  joint  property  was 
shared  according  to  their  respective  marital  property  rights. 
There  were  some  exceptions  to  this  rule.  In  case  of  adult- 
ery, for  instance,  the  guilty  spouse  lost  half  of  his  marital 
property  to  the  other  and  in  case  of  desertion  or  when  one 
plotted  the  other's  destruction,  the  innocent  spouse  had  a 
right  to  all  the  property.  No  duty  existed  on  the  part  of 
either  spouse  to  support  the  other  after  the  divorce  had  been 
decreed,  except  when  insanity  had  formed  the  ground  for  the 
divorce,  in  which  case  the  petitioner  was  duty  bound  to  con- 
tribute, in  part  at  least,  to  the  support  of  the  insane  spouse. 

•^See  Svcrigcs  Rikcs  Lag.     Schlyter's  ed.,   1886,  p.   18. 
^-Ibid.     Giftermdlsbalken,  chapter  14,  paragraph  i. 


38  Marriage  and  Divorce 

In  all  cases,  the  court  determined  the  disposal  of  the  chil- 
dren. 

To  summarize,  then,  separation  was  granted  only  in  case 
the  family  life  had  become  intolerable  due  to  a  growing  ill 
feeling  between  husband  and  wife.  It  was  preceded  by 
warnings  from  rector  and  deacons,  and  if  the  year's  separa- 
tion decreed  by  the  court  did  not  succeed  in  uniting  the 
couple,  the  separation  was  made  absolute  by  Royal  dispensa- 
tion. Absolute  divorce  could  be  gained  either  by  court  de- 
cision or  by  Royal  dispensation.  The  court  acted  in  case  of 
adultery,  desertion,  plots  against  or  attempts  upon  the  life 
of  the  petitioner,  life  sentence,  unless  the  petitioner  was  the 
cause  of  or  an  accomplice  in  the  crime,  and  uninterrupted 
insanity  for  three  years.  Royal  permission  could  be  had  for 
"other  causes",  of  which  the  law  specified  several  already 
mentioned.  In  addition  to  these,  the  King  could  grant  divorce 
on  any  ground  deemed  sufficient. 

The  dissolution  of  marriage  by  divorce  made  it  impossible 
for  the  persons  involved  to  remarry  until  a  letter  of  divorce 
had  been  issued  by  the  cathedral  chapter.  Originally,  the 
divorce  was  not  considered  legal  until  this  letter  had  been 
issued,  but  in  late  years,  the  legal  effects  have  been  regarded 
as  dating  from  the  court  decision.  If  a  divorced  person 
wished  to  remarry,  it  was  necessary  to  present  the  letter  of 
divorce  or  no  publication  of  banns  would  be  made.  There 
was  one  exception.  In  1795,  a  Royal  letter  stated  that  for 
members  of  alien  faiths  a  letter  of  divorce  was  unnecessary. 
Even  in  this  instance,  however,  the  judge  should  refer  the 
applicants  for  banns  to  the  spiritual  head  of  their  congrega- 
tion. With  the  institution  of  civil  marriage,  this  practise 
disappeared. 

In  the  course  of  time  it  became  apparent  that  much  was 
needed  to  make  the  divorce  law  better  adapted  to  a  chang- 
ing society.  In  1879,  the  Riksdag  asked  the  government  to 
revise  the  entire  divorce  law,  particularly  since  the  gtound 
of  malicious  desertion  had  become  much  abused.  The  law, 
as  we  recall,  required  the  deserter  to  leave  for  an  unknown 
place  or  a  known  place  abroad.  Since  Copenhagen  was  re- 
garded as  abroad,  it  had  become  a  Mecca  for  "deserters", 
whose  absence  from  wife  and  children  gave  the  former  a 
valid  ground  for  divorce,  which  could  be  gained  in  a  few 
weeks.     In   1888,  the  Sy nodical  Congress  asked  the  govern- 


Legislation  in  Sweden  39 

ment  for  legislation,  which  would  prevent  divorces  by  mu- 
tual agreement,  which  undoubtedly  was  the  real  ground  in 
most  desertion  cases.  Nothing  was  done.  In  1899,  the  Riks- 
dag again  asked  for  revision  of  the  law,  supported  in  its  re- 
quest by  the  cathedral  chapters.  In  1903,  the  Synodical  Con- 
gress reminded  the  government  of  this  request,  and  in  a 
communication  four  years  later,  the  Solicitor  General  stress- 
ed the  necessity  for  revision,  because  the  practise  of  the 
courts  had  made  divorce  the  prerogative  of  the  rich,  while 
the  procedure  for  dealing  with  quarrelsome  couples  had  led 
to  much  abuses  and  serious  difficulties.  A  second  commun- 
ication from  the  Solicitor  General,  in  1909,  arrived,  however, 
before  the  government  took  steps  to  instruct  the  Law  Com- 
mission to  begin  work  on  a  new  marriage  and  divorce  law.^^ 

^^Lagberedningens  forslag  etc.,  I,  pp.  379-383. 


CHAPTER  THREE 


THE  LEGAL  STATUS  OF  THE  WIFE 

The  best  single  index  to  a  nation's  social  progress  is 
probably  the  position  of  its  women,  socially,  economically, 
and  politically.  In  Sweden,  development  in  this  respect  was 
not  very  rapid  until  about  seventy-five  years  ago.  From  that 
time  on,  however,  both  the  unmarried  and  the  married  wo- 
man's status  has  undergone  revolutionary  changes. 

In  Teutonic  countries,  not  the  individual  but  the  family 
as  a  unit  was  considered  when  legislation  affecting  its  mem- 
bers was  passed.  The  old  Scandinavian  family  had  many 
things  in  common  with  the  patriarchal  family  of  the  Romans. 
The  marriage,  which  transferred  the  guardianship  over  the 
wife  from  her  father  to  her  husband  gave  her  only  limited  pow- 
ers, the  husband  being  looked  upon  as  the  representative,  spokes- 
man, and  guardian  of  the  entire  family  group.  In  this  capacity, 
he  managed  all  property  belonging  to  himself  or  brought  into 
the  family  by  his  wife.  His  power  was  gradually  somewhat 
circumscribed  in  order  to  protect  her  interests,  and  she  be- 
came joint  owner  with  him  of  the  property.  This  situation 
was  reflected  by  all  the  Provincial  Laws  with  the  exception 
of  the  Law  of  Gottland,  which  contains  traces  of  a  dotal 
system,  according  to  which  the  dowry  was  the  private  prop- 
erty of  the  wife,  administered  by  her  husband  while  the 
marriage  lasted  and  reverting  to  her  family,  when  the  mar- 
riage was  dissolved  by  death  or  divorce.'  As  part  owner  of  the 
estate,  the  wife  had  a  right  to  one-third  of  the  joint  property, 
which  consisted  of  land  and  chattels  acquired  during  the  mar- 
riage. Originally,  the  wife  was  given  joint  ownership  in 
chattels  alone,  as  indicated  by  the  marriage  formula  in  the 
Law  of  Uppland,  mentioned  in  the  first  chapter. 

The  Country  Law  made  no  changes  in  the  property  rights 
of  a  wife  under  its  jurisdiction.  The  Borough  Law,  however, 
equalized  the  property  rights  of  spouses,  giving  the  wife  a 
right  to  half  of  the  joint  property.     These  laws  also  consid- 

^Lagberedningens  for  slag   etc.,   II',  p.    130. 


Legislation  in  Sweden  41 

ered  personal  property,  such  as  clothing-,  etc.,  private  in 
nature,  but  if  the  wife  died,  her  personal  belongings  went  to 
her  husband.  Her  dowry  and  the  morning  gift  remained  her 
private  property,  the  latter  belonging  to  her  heirs,  if  she 
died. 

The  older  laws  did  not  differentiate  between  private  and 
joint  debts;  all  debts  were  regarded  as  joint.  The  later 
Provincial  Laws,  however,  segregated  debts  incurred  in  the 
form  of  fines,  and  still  later  those  due  to  wastefulness, 
gambling,  etc.,  all  of  which  were  to  be  paid  by  the  guilty 
spouse  alone  out  of  his  private  property  or  his  share  in  the 
joint  property.  As  a  protection  for  the  wife,  a  Royal  letter 
of  1669  gave  instructions  that  the  husband's  pre-nuptial  debts 
were  not  to  be  paid  out  of  her  property,  unless  she  had  made 
herself  jointly  liable  with  him  for  the  payment  of  the  debt.'^ 
The  Code  of  ^"  view  of  the  statement  that  "when  a  man 

,_^^  and  a  woman  have  married,  he  shall  be  her 

1/34 

spokesman  and  shall  represent  her  except  in 

the  matter  of  property  withdrawn  from  his  control,"^  the 
Code  of  1734  still  recognized  the  legal  superiority  of  the 
husband.  Unable  to  make  a  contract  for  the  sale  of  her  own 
property  and  unable  to  become  legal  security  without  the 
consent  of  her  husband,  in  addition  to  many  other  legal 
disabilities,  the  wife's  condition  was  but  slightly  improved. 
The  law  now  recognized  as  valid  a  will  drawn  by  the  wife. 
The  Law  Commission  points  out  that  "her  independent 
rights  as  housewife.  ..  .were  not  defined  in  the  law."  Only 
if  her  husband  was  out  of  his  mind,  absent,  or  had  deserted 
her,  could  she  dispose  of  property  to  buy  the  bare  necessities 
of  life.  Even  then,  the  law  required  her  to  take  counsel  with 
her  relatives  before  selling  real  property.  It  was  not  ex- 
plicitly stated  that  she  was  her  husband's  ward,  but  in  real- 
ity this  was  her  position.* 

The  difference  between  the  Borough  and  the  Country 
Laws,  with  respect  to  property  rights  of  spouses,  was  main- 
tained. The  former  gave  them  equal  property  rights  in  real 
estate  or  waterworks  on  the  town's  land,  whether  acquired 
before  or  after  the  marriage.  The  people  of  the  countryside 
were  governed  by  the  Country  Law,  which  gave  the  husband 

^Ibid.,^  p.  135. 

^Sveriges  Rikes  Lag.  Giftermalshalkcn,  chapter  9,  paragraph  i. 

*Lagberedningc)is  forslag   etc.,  IJ\  p.    136. 


42  Marriage  and  Divorce 

the  ownership  of  two-thirds  of  all  the  joint  property.  This 
property  consisted  of  real  property  and  chattels,  jointly  ac- 
quired by  the  spouses.  The  control  of  the  property  remained 
in  the  husband's  hands  and  any  pre-nuptial  agreement  limit- 
ing his  power  in  this  respect  was  invalid.  The  only  legal  re- 
straint upon  him  was  the  old  Provincial  Law  prescription 
that  he  could  not  "give  away,  pawn,  or  sell  his  wife's  real 
property  in  the  country,  or  land  or  house  of  hers  in  the  town, 
without  her  voluntary,  oral  and  written,  permission,  given  in 
the  presence  of  witnesses,  or  orally  given  to  the  court."^  Only 
in  case  her  husband  deserted  her  or  if  separation  from  bed 
and  board  had  been  decreed,  could  she  become  the  guardian 
of  her  own  children  and  exercise  control  over  the  property. 

The  law  provided  a  greater  protection  for  the  wife  in  its 
careful  stipulations  regarding  the  responsibility  for  debts. 
Pre-nuptial  debts  and  private  debts  had  to  be  paid  out  of 
the  property  of  the  debtor  spouse  and  if  he  used  the  other's 
property  for  this  purpose,  the  law  gave  the  injured  spouse, 
usually  the  wife,  a  right  to  compensation. 

In  order  to  provide  some  balance  between  the  economic 
advantages  of  the  spouses  and  give  the  widow  a  means  of 
subsistence,  the  law  prescribed  a  morning  gift  for  the  wife. 
This  gift  was  to  consist  of  real  property  or  chattels,  not  both. 
If  it  was  given  in  the  form  of  real  property,  it  could  not  ex- 
ceed more  than  one-third  of  the  husband's  share  in  such 
property.  If  it  was  less,  his  heirs  were  required  to  make  up 
the  difference.  If  it  was  given  in  the  form  of  chattels,  the 
wife  had  a  right  to  one-tenth  of  her  husband's  share  in  the 
chattels,  and  in  this  tenth  she  received  title.  A  morning  gift 
in  the  form  of  real  property  could  be  used  by  her  only  dur- 
ing her  life  time  or  while  she  remained  unmarried.  At  her 
death  or  remarriage  it  reverted  to  her  husband's  heirs.  In 
1845,  the  rules  regarding  the  morning  gift  were  modified  and 
the  Borough  Law  provision,  which  gave  the  w^dow  no  right 
to  the  morning  gift  if  she  had  children,  was  made  general. 

The  institution  of  separation  of  property  was  created  as 
a  further  safeguard  for  the  wife's  interests.  To  begin  with, 
this  separation  was  an  integral  part  of  the  bankruptcy  pro- 
ceedings. The  Bankruptcy  Act  of  1818  thus  gave  the  wife 
a  means  of  protecting  her  share  in  the  estate  from  her  hus- 

^Giftermdlsbalken,  chapter  11,  paragraph  i. 


Legislation  in  Szvcden 


43 


band's  creditors.     Upon  her  petition,  the  court  could  decree 
that  her  property  be  segregated  from  the  estate  and  placed 
nder  the'control  of  a  trustee.    The  husband  was    however 
permitted  to  act  in  this  capacity,  a  situation  which  often  led 
'toTe  annulment  of  the  separation      Final  y    the  sepai-aUon 
of    property    became    quite    independent    of    the    bankruptcy 
proceedings.    An  act  of  1862  gave  the  wife  the  nght  to  appea 
For  such  feparation  on  several  grounds,  the  most  important 
of  which  was  the  failure  of  the  husband  to  exercise  his  guai  1- 
?an  hip  in  a  proper  manner.     The  separation  of  the  property 
caused    of   course,   the   disappearance   of  the  joint  property, 
til  debts  contracted  by  either  spouse  were    with   some  ex- 
ceptions, to  be   considered  private   debts   and   the  wife  was 
made  responsible  for  the  payment  of  debts  incurred  in  the 
"onduct  o'f  her  business,  if  she  had  one,  and  ^or  the  paymen 
of  fines  and  damages  in  suits  against  her      She   couW   "o 
yet  manage  her  own  private  property  but  had  to  place  it  m 
the  hands  of  a  trustee.  ,  , 

The  growth  of  the  demand  by  women  for   independence 
made  itself  felt  in  the  last  half  of  the  nineteenth  century  and 
he  married  woman's  status  became  particularly  ambiguous 
after  1858,  which  marked  the  independence  of  the  unmarried 
woman  at  twenty-five.«     From   1862  to   1873  not  fewer  than 
seven  sessions  of  the  Riksdag  entertained  motions  to  remove 
the   husband's  power   of   guardianship   and   give  .^  J^^e   the 
right  to  control  her  own  property.     The  only  visible  eiifec 
w!s  a  communication  from  the  Riksdag  to  the  government 
in  1871  asking  that  a  revision  of  the  law  be  made  m  order  to 
enable  the  wife  to  get  controlling  powers  over  her  own  prop- 
perty    by    a    pre-nuptial    agreement.    Instead    of     revising    the 
entire  law,  a  decree  was  issued  in  1874,  giving  the  married 
woman,  for  the  first  time  in  Sweden,  a  right  to  control  he 
own  marital  and  private  property  and  all  property  acquired 
by   her  own  labor,   if  this  right  was   settled   by   pre-nuptial 
agreement.     She  could  dispose  of  her  property  at  will    and 
in  suits  regarding  her  property,  she  and  not  her  husband  was 
defender  or  plaintiff.    A  wife,  who  had  taken  precautions  m 
accordance  with  this  decree,  was  not  forced  to  turn  her  prop- 
erty over  to  a  trustee.' 


6In   1884  lowered   to  twenty-one. 

-'Laqheredningens  forslag  etc.,  IV,  PP-  143-4- 


44  Marriage  and  Divorce 

The  year  1874  saw  another  step  forward  in  the  emancipa- 
tion process.  Due  to  the  work  of  the  "Society  for  the  Mar- 
ried Woman's  Property  Rights",  Sweden  became  the  second 
European  country^  to  grant  the  married  woman  a  right  to 
her  own  earnings.  This  organization  had  also  worked  con- 
sistently to  break  up  the  system  of  joint  ownership  and 
thereby  free  the  wife  from  her  dependence  upon  her  husband, 
which  his  position  as  sole  manager  of  the  property  made 
possible.  Repeated  efforts  resulted  in  a  law,  which,  in  1898, 
excepted  from  the  joint  property  any  property  acquired  by  a 
spouse  before  the  marriage  or  later  inherited.  In  addition, 
it  was  made  possible  for  husband  and  wife  to  gain  separation 
of  the  property  by  mutual  consent.  Such  separation,  once 
decreed,  could  not  be  annulled.  Although  the  husband's 
power  was  somewhat  reduced,  he  still  remained  in  control 
of  the  property,  but  in  addition  to  needing  his  wife's  consent 
for  the  sale  of  real  property,  he  was  also  forced  to  ask  her 
permission  for  cutting  wood  on  her  land,  etc.  The  law  also 
made  some  changes  in  the  rules  governing  the  responsibility 
for  debts. 

The  question  of  the  married  woman's  inferior  position 
was  again  brought  to  a  head  during  the  session  of  1903,  when 
a  letter  to  the  King  was  prompted  by  motions  in  both 
Chambers  that  the  husband's  guardianship,  which  he  exer- 
cises over  his  wife,  be  abolished,  but  that  the  husband  never- 
theless retain  his  controlling  power  over  the  family  property 
and  his  right  to  represent  the  family.  Besides,  there  should 
be  an  express  statement  that  a  wife  becomes  of  age  at  twenty- 
one,  subject  to  the  limitations  imposed  by  the  representative 
and  administrative  powers  of  her  husband.^  Again,  in  1908, 
the  Riksdag  sent  the  King  a  communication  asking  that  a 
law  be  prepared  giving  the  married  woman  the  right  to  be 
appointed  the  guardian  of  her  husband,  in  case  the  latter  had 
been  deprived  of  his  majority  privileges  by  court  action.  In 
1909,  the  Law  Commission  was  ordered  to  take  up  the  work 
of  revamping  the  entire  marriage  act  in  the  light  of  modern 
knowledge  and  the  social  development  of  the  country.  The 
result  was  the  new  marriage  law,  of  which  the  part  dealing 

^England  passed  such  a  law  in  1870. 

"Stael  von  Holstcin,  M.,  Malsmanskapci  och  kviuiiaiis  sidlhiing  inonv 
aktcnskapct  cnligl  gallandc  sz'ensk  rdtt,  pp.  35-36. 


Legislation  in  Sweden  45 

with  the  economic  position  of  the  wife  was  submitted  to  the 
government   in    1918. 

Before  the  law  of  1920  went  into  effect,  the  status  of  the 
wife,  as  far  as  the  law  was  concerned,  was,  in  spite  of  im- 
provements, rather  unfavorable  in  many  respects,  giving  un- 
mistakable evidence  of  the  double  standard,  which  the  pres- 
ent law  has  succeeded  in  abolishing.  She,  first  of  all,  fol- 
lowed her  husband's  estate  in  life;  if  he  for  some  reason  or 
other  became  poor,  she  was  obliged  to  accept  this  fact  with 
resignation,  even  though  he  might  have  been  the  cause  of 
the  poverty.  Her  husband's  nationality  was  hers,  and  the 
choice  of  domicile  was  in  his  hands.  Her  only  right  to  re- 
fuse to  live  where  he  determined  to  live  depended  on  wheather 
or  not  his  decision  would  cause  her  life  to  be  placed  in  jeop- 
ardy, expose  her  to  injustice,  or  force  her  to  move  abroad. 
In  the  last  mentioned  case,  she  could  refuse  to  comply  with 
his  wishes  only  if  his  business  at  the  time  of  the  marriage 
was  not  likely  to  take  him  abroad  or  if  he  was  not  appointed 
to  some  official  position  which  necessitated  foreign  residence. 

A  wife  was  in  duty  bound  to  expend  her  energies  and  ef- 
forts for  her  family  and  her  home,  in  accordance  with  her 
husband's  wishes.  This  meant  that  she  could  not  accept 
outside  work  without  his  permission,  unless  the  needs  of  the 
family  made  it  imperative.  Although  the  law  gave  him  no 
power  to  compel  her  to  follow  his  wishes,  he  could  refuse  to 
support  her  or  could  ask  the  clergy  to  "warn"  her,  the  first 
step  toward  separation  from  bed  and  board.  With  her  hus- 
band's permission^**  she  could  conduct  a  business  or  engage 
in  other  profitable  employment,  but  if  he  were  legally  dis- 
qualified to  engage  in  business  (due  to  official  position  as 
custom  officer,  public  prosecutor,  or  tax  collector)  she  shared 
his  disability,  even  though  she  may  have  had  his  permission. 
If  she  failed  to  heed  her  husband's  refusal,  she  could  be 
fined  like  any  other  individual,  who  conducted  a  business 
without  license.  When  she  worked  lawfully,  i.  e.  with  her 
husband's  permission,  her  earnings  belonged  to  her,  although 
it  is  not  certain  that  what  she  purchased  w^ith  these  earnings 
became  hers  to  do  with  as  she  chose. 

A  married  mother  had  nothing  to  say  in  the  bringing  up 
of  her  own   children,  i.   e.  the   law  gave  her   no   such   right. 

^^The  industrial  and  commercial  acts  of  1846  prohibited  a  woman  to 
engage  in  business  without  her  husband's  permission  and  security. 


46  Marriage  and  Divorce 

Her  husband  was  their  guardian  until  they  reached  majority, 
chose  their  life's  work,  and  gave  away  his  daughters  in  mar- 
riage. If  he  abused  his  guardianship,  the  court  could  appoint 
some  one  else  guardian,  but  in  no  instance  could  the  mother 
be  so  appointed  while  the  family  remained  undisrupted.  She 
was  thereby  classified  with  "feeble-minded  persons,  heavy 
debtors,  spendthrifts,  enemies  of  the  child,  persons  not  yet 
twenty-five  years  of  age,  or  so  old  and  crippled  that  he  can 
not  discharge  his  duties  as  guardian,  etc.""  Only  in  case 
the  husband  went  insane,  deserted  his  wife,  or  for  other 
reasons  was  unable  to  exercise  his  guardianship,  could  she 
be  substituted,  and  if  he  died,  she  took  his  place  as  guardian 
of  her  children — until  she  remarried.  In  case  husband  and 
wife  belonged  to  dififerent  religious  faiths,  the  former  de- 
cided in  which  faith  the  children  should  be  brought  up. 

As  a  rule,  all  the  property  of  the  spouses  was  joint,  since 
in  the  majority  of  marriages  no  private  property  or  income 
existed.  Of  this  joint  property  the  husband  was  the  sole 
manager.  His  administrative  powers  extended  even  to  his 
ivife's  private  property,  with  the  exception  of  her  private  real 
property.  He  decided  upon  the  amount  to  be  spent  for  the 
household  expenses,  for  the  education  of  the  children,  and 
even  for  his  wife's  personal  needs.  The  latter  had  no  right 
to  demand  anything  from  her  husband,  except  necessities, 
even  though  she  may  have  been  the  source  of  the  entire  fam- 
ily fortune.  Most  important  of  all,  perhaps,  was  the  fact  that 
no  matter  how  he  managed  the  joint  property,  he  owed  his 
wife  no  accounting. 

A  husband  could  not  dispose  of  his  wife's  real  property 
without  her  written  permission,  witnessed  by  two  impartial 
persons,  or  orally  given  to  the  court.  Without  such  permis- 
sion he  could  not  cut  timber  on  her  land  or  sell  clay  or  sand 
etc.  from  it.  If  his  management  was  unsatisfactory,  she 
:ould  apply  for  separation  of  property  on  that  ground  or  on 
the  ground  that  he  had  abused  his  powers  as  her  representa- 
tive. She  might  even  ask  the  court  to  place  him  under  guard- 
ian on  the  charge  of  wastefulness,  and  if  court  action  to  that 
effect  followed,  she  had  a  valid  ground  for   divorce. 

Corresponding  to  the  husband's   position   as   the  external 
representative  of  the  family,  the  wife  had  nominal  charge  of 


^^Stael  von  Holstein,  M.,  op.  cit.,  p.  9. 


Legislation  in  Sweden  47 

the  internal  affairs,  the  domestic  economy  of  the  home.  She 
had  the  power  to  purchase,  even  on  credit,  what  was  neces- 
sary for  the  maintenance  of  the  physical  welfare  of  the  fam- 
ily and  other  personal  needs,  in  addition  to  material  and 
tools  for  domestic  work.  She  could  also  sell  these  things, 
when  they  had  lost  their  usefulness  to  her,  and  dispose  of  the 
products  of  the  domestic  work,  which  the  family  could  not 
consume.  The  hiring  and  firing  of  servants,  the  payment  of 
their  %vages,  etc.  belonged  in  her  province.  What  she,  in  the 
capacity  of  housewife,  undertook  to  do  bound  her 
husband  as  well.  For  instance,  he  was  legally  bound  to  pay 
debts  contracted  by  her  in  the  exercise  of  her  housewifely 
duties.  But — her  powers  were  entirely  dependent  on  her 
husband's  good  will.  She  could  perform  no  administrative 
act  without  his  express  permission.  If  she  bought  groceries 
on  credit  against  his  order,  for  instance,  he  did  not  have  to 
pay  the  bill,  unless  the  grocer  was  unaware  of  his  order.^^ 

A  wife  could  become  the  manager  of  the  estate  in  case 
her  husband  became  incapacitated  or  deserted  her,  or,  if 
separation  from  bed  and  board  was  decreed  and  she  was 
left  in  charge  of  the  property  while  the  separation  lasted, 
i.  e.  for  one  year.  In  the  former  case,  she  could  sell  chattels 
to  meet  the  necessary  expenses  of  the  household  but  not 
real  property  except  by  permission  of  the  court  and  after  con 
sultation  with  her  relatives. 

A  wife  could  also  make  debts,  which  were  secured  by  her 
private  property  and  her  marital  property,  in  case  it  was  a 
private  debt,  and  by  her  private  property  alone,  in  case  it 
was  an  administrative  debt.  She  could  not,  however,  become 
security  with  legal  efifect  unless  she  had  her  husband's  per- 
mission. If  her  husband  unlawfully  used  any  of  her  private 
or  marital  property,  she  could  be  compensated  for  her  loss 
when  the  estate  was  divided,  either  after  her  husband's  death, 
or  when  the  separation  of  the  property  took  place.  Her 
right  could  also  be  protected  by  prenuptial  agreement,  in 
which  case  she  might  even  control  all  her  property  and  be- 
come in  a  large  measure  independent.  Naturally,  there  was 
a  great  deal  of  hesitancy  about  having  such  agreements 
drawn  up,  since  it  seemed  to  imply  that  a  woman  did  not 
trust  the  man  she  had  chosen  as  her  husband.     Her  position 

^^Stjernstedt,  G.,  Den  sz'enska  kvinnans  riittsliga  sfallning,  p.  37. 


48  Marriage  and  Divorce 

became  more  difficult  by  the  law's  provision,  which  required 
that,  to  be  valid,  the  agreement  should  be  prepared  immedi- 
ately before  the  marriage  took  place  and  given  to  the  court 
within  a  week  after  the  wedding.  In  spite  of  this,  however, 
late  years  have  seen  an  increase  in  the  number  of  pre-nuptial 
agreements,  particularly  in  the  cities.  l'>om  1861  to  1865, 
inclusive,  pre-nuptial  agreements  were  made  in  only  1.89 
percent  of  the  marriages,  while  for  the  period  1901-1905  the 
percentage  had  risen  to  3.64,  the  figure  for  the  countryside 
being  2.24  and  for  the  cities,  7.36.  From  1910  to  191 5,  4.70 
percent  of  the  marriages  in  the  country  as  a  whole  had  been 
preceded  by  such  agreements,  the  percentage  for  the  cities 
being  13.10  and  for  the  countryside  3.03.  Of  course,  the  man 
in  the  street  was  not  very  much  in  evidence  in  these  figures, 
the  percentage  of  agreements  preceding  the  marriages  in  the 
group  containing  by  far  the  great  majority  of  the  people, 
agricultural  workers,  laborers,  and  common  soldiers,  being 
less  than  two  percent.^^ 

Most  of  the  pre-nuptial  agreements  have  dealt  with  the 
separation  of  property.  Such  separation  could  also  be  gained 
after  the  marriage,  either  upon  joint  or  individual  petition. 
If  the  petition  was  joint,  the  court  granted  it  without  further 
ado.  The  wife  could  petition  for  separation  of  the  property 
in  case  the  estate  had  such  large  debts  that  they  could  not 
be  paid  without  using  her  private  or  marital  property,  in 
spite  of  the  rules  regarding  the  responsibility  of  spouses  for 
debts ;  if  there  was  a  danger  that  the  payment  of  the  debts 
of  the  estate  would  result  in  her  losing  her  chance  to  receive 
compensation,  to  which  she  would  be  entitled  at  the  division 
of  the  estate;  if  bankruptcy  proceedings  were  started  against 
her  and  her  husband;  if  her  private  property  or  the  joint 
property,  which  she  could  control  (such  as  her  own  earn- 
ings), had  been  used  to  pay  debts  which  such  property  did 
not  secure,  or  if  such  property  of  hers  had  been  pawned ;  if 
her  husband  had  unlawfully  disposed  of  her  private  prooerty 
or  their  joint  property;  if  her  husband  had  burdened  the 
estate  with  debts  without  corresponding  benefits,  or  in  other 
ways  mismanaged  the  afifairs  of  the  estate;  if  he  had  abused 
his  powers  of  guardianship;  if  he  had  deserted  her  and  had 
been  gone  for  six  consecutive   months;   or,   if  he   had   been 


^^Lagberedningens  forslag  etc.,  IV,  pp.  519,  524-525. 


Legislation  in  Sweden  49 

placed  under  guardian.  The  separation  had  the  effect  that 
all  property,  acquired  after  the  division  had  been  made,  be- 
came private,  which  meant  also  that  from  that  time  on  all 
debts  were  private.  Husband  and  wife  were  financially  di- 
vorced in  the  eyes  of  the  law,  although  it  was  still  impossible 
for  them  to  institute  civil  suits  against  each  other,  make  con- 
tracts with  each  other,  or  give  each  other  gifts,  rules  which 
were  designed  to  minimize  the  chances  for  fraudulent  ac- 
tions.^* 

The  husband's  power  of  guardianship  gave  him  the  right 
to  represent  his  wife  in  court,  except  in  civil  suits  dealing 
with  property  administered  by  her  or  in  criminal  suits  against 
her  involving  serious  crimes.  In  the  latter  case,  husband 
and  wife  were  jointly  indicted.  The  representative  power 
of  the  husband  gave  him  also  the  right  to  act  for  his  wife  at 
stockholders'  meetings,  etc. 

This  survey,  imperfect  as  it  is,  ^hows  that  before  the 
passage  of  the  new  marriage  law,  the  married  woman  in 
Sweden  had  succeeded  in  gaining  relatively  few  concessions, 
which  somewhat  differentiated  her  legal  status  from  that  of 
a  minor  child  or  an  adult  under  guardian.  Although  it  is 
true  that  the  last  half  century  has  seen  a  great  change  in  the 
attitude  toward  the  woman  as  unmarried,  wife,  and  mother, 
it  was  not  until  1920  that  she  was  given  her  economic  free- 
dom, after  years  of  active  and  determined  warfare  conducted 
from  lecture  platforms  and  through  the  medium  of  numerous 
books  and  pamphlets,  under  the  generalship  of  women,  whose 
names  have  become  familiar  far  outside  their  native  country, 
from  the  pioneer  days  of  Fredrika  Bremer  to  the  days  of 
Ellen  Key. 

i^Stjernstedt,  G.,  op.  cit.,  pp.  51-2. 


PART  TWO 


The  New  Marriage  Law 


CHAPTER  FOUR 


THE  ENTRANCE  INTO  MARRIAGE 

Shortly  after  the  peaceful  revolution  of  1809,  the  work  of 
remodeling-  the  old  civil  code  was  begun.  During  the  latter 
half  of  the  nineteenth  century,  however,  the  Law  Commis- 
sion was  inactive  and  it  was  not  until  1902  that  a  new  com- 
mission was  appointed  for  the  purpose.  It  was  to  devote  its 
efforts  to  the  civil  code  and  its  first  work  was  the  revision  of 
the  Land  Law,  which  was  ready  in  1909.  In  De- 
cember of  that  year,  the  Government  instructed  the  Com- 
mission to  begin  work  on  the  Marriage  Law,  with  all  the 
laws  pertaining  to  it,  and  those  portions  of  the  Law  of  In- 
heritance, which  could  be  suitably  treated  in  the  same  con- 
nection. The  value  of  cooperation  with  the  other  Scandi- 
navian countries  to  insure  uniformity  in  this  matter,  which 
vitally  affected  all  of  them,  was  suggested,  probably  because 
a  few  weeks  earlier  a  preliminary  conference  had  been  held 
for  the  purpose  of  discussing  the  advisability  of  inter-Scan- 
dinavian cooperation  in  this  field.  At  this  conference  it  was 
argued  that  the  proximity  of  the  countries  and  the  extensive 
traveling  had  made  communication  so  easy  that  is  was  highly 
desirable  to  cooperate  in  the  production  of  a  uniform  mar- 
riage law,  in  particular  the  parts  dealing  with  impediments  to 
marriage,  the  marriageable  age,  and,  most  important  of  all, 
the  legal  status  of  the  wife  in  the  family. 

In  August,  1910,  the  Government  instructed  the  Commis- 
sion to  meet  with  the  delegates  from  Norway  and  Denmark 
to  draft  the  parts  of  the  law  dealing  with  the  impediments 
to  marriage  and  the  annulment  of  marriage,  and  the  following 
year  the  Commission  was  further  instructed  to  add  the  rest 
of  the  law  suggested  by  the  preliminary  conference  mention- 
ed; in  1912,  the  methods  of  consummating  the  marriage,  etc. 
were  added.  The  Commission  comprised  some  of  the  finest 
legal  minds  in  the  country,  a  statement  which  holds  equally 
true  for  the  membership  of  the  Norwegian  and  Danish  Com- 
missions.    Numerous  meetings  were  held  in  all  three  coun- 


54  Marriage  and  Divorce 

tries  and  although  it  was  found  impossible  to  reach  complete 
uniformity  in  all  sections  of  the  law,  due  to  the  great  devia- 
tion of  former  legal  practice,  remarkable  progress  was  made. 
Parts  of  the  law  dealing  with  medical  questions,  such  as 
venereal  disease  forming  an  impediment  to  marriage,  the 
marriage  of  epileptics,  etc.,  were  submitted  to  the  Royal 
Medical  Board  and  the  Medical  Faculty  of  the  University 
of  Uppsala  for  criticism  and  advice.  For  other  parts,  special 
experts  were  consulted. 

In  1913,  Ihe  work  of  the  Commission  had  progressed  far 
enough  to  enable  it  to  present  to  the  Government  a  draft  of 
a  law  regarding  the  entrance  into  the  marriage  and  the  dis- 
solution of  the  marriage  bond.  While  this  law  was  under 
consideration  and  after  its  passage  in  191 5,  the  Commission 
continued  its  work  on  the  question  of  the  wife's  legal  status 
in  the  family  until  a  law,  embodying  the  results  of  these 
efforts,  was  presented  to  the  Government  in  1918  and  passed 
by  the  Riksdag  in  1920. 

The  Lazv  of  "^^■'^  Marriage  and  Divorce  Law,  the  draft 

.Q.  -  of  which  was  presented  to  the  King  in  1913, 

was  embodied  in  a  Royal  Proposition  to 
the  Riksdag  of  1915.  It  created  a  discussion,  which  was  by 
no  means  limited  to  the  halls  of  the  legislature.  The  great- 
est opposition  to  this  "insult  to  good  old  Swedish  troth  and 
faithfulness",  which  would  cause  the  "destruction  of  the  state 
of  holy  matrimony",  probably  came  from  the  clergy. 

It  was  evident  to  everybody  that  there  would  be  violent 
opposition  to  a  measure  which  made  such  sweeping  changes. 
When  the  Law  Council  listened  to  the  reading  of  the  law, 
it  stated  "that  on  account  of  the  extraordinary  importance  of 
this  field  of  legislation  and  because  different  points  of  view^ 
and  sometimes  different  customs  have  developed  in  the  prac- 
tice which  the  law  attempts  to  regulate,  it  is  to  be  expected 
that  in  many  quarters  the  new  law  will  meet  hestitation  and 
not  infrequently  opposition."-  This  fear  was  well  founded. 
More  than  once,  speakers  in  the  Riksdag  verbosely  expressed 
their  opinions  that  the  law  was  "chemically  free  from  ethical 

^Three  justices  of  the  Supreme  Court  and  one  of  the  Administrative 
Court,  appointed  to  pass  on  the  constitutionality  and  the  formulation  of 
all  proposed  laws  and  to  report  on  the  proposals  for  initiation,  repeal, 
amendment,  or  explanation  of  all  laws  and  decrees. 

'■^Kungl.  Maj-.fs  Proposition  »;-.  18,  1915,  p.  50. 


Legislation  in  Sweden  55 

principles",  "savored  of  looseness'',  and  encouraged  "selfish- 
ness" while  "placing  a  premium  on  failure  to  live  up  to  a 
sense  of  duty." 

In  the  First  Chamber  the  law  was  championed  by  the 
Minister  of  Justice,  His  Excellency  Hasselrot,  who  introduc- 
ed it  in  a  speech  on  May  8,  191 5.  The  substance  of  his  ad- 
dress was  as  follows :  "The  proposed  law  builds  in  the  main 
on  an  existing  foundation,  the  foundations  of  current  con- 
ceptions of  justice.  With  tenderness  and  care  the  many 
antiquities,  the  clumsy  forms,  which  often  humiliated  un- 
fortunate people,  have  been  removed.  At  every  step  for- 
ward, the  importance,  yes,  the  necessity  of  complete  uphold- 
ing the  sacredness  of  marriage,  has  constantly  been  the 
guide.""  He  also  pointed  out  the  long  felt  necessity  for  a 
revision  of  the  one  hundred  and  eighty-year  old  law,  which 
had  remained  virtually  unchanged  in  spite  of  the  rapid  social 
progress  of  the  country.  The  changes  that  had  been  effected 
had  been  built  on  principles,  different  from  those  on  which 
the  old  civil  code  rested  with  the  result  that  the  law  in  force 
presented  a  conglomerate  of  provisions,  which  failed  in  per- 
fect agreement,  an  absolutely  necessary  trait  of  a  good  law. 
Worse  than  that,  however,  was  that  "the  law  no  longer  ex- 
pressed  the   views   current   among  the   people Such    a 

situation  carries  a  danger  for  the  authority  of  the  law  and 
for  the  maintenance  of  justice.  It  is  time  that  the  law  is 
brought  into  harmony  with  the  popular  ideas  of  justice. 
That  is  the  only  road  we  can  travel  to  protect  the  family,  the 
foundation  of  our  entire  social  order.  A  contrary  behavior 
might  lead  the  people  to  choose  other  forms  than  a  family 
founded  on  marriage  for  the  mutual  relationship  between  man 
and  woman,  having  for  its  purpose  the  propagation  of  the 
race.  The  proposed  law  is  largely  a  codification  of  what  has 
already  been  incorporated  in  the  public  sense  of  justice  and 
which  has  to  a  great  extent  received  expression  in  our  social 
life  side  by  side  with  the  law  or  even  in  direct  opposition  to 
it."* 

n  .     ,T    7  The  two  chapters,  which  attracted  the  great- 

est opposition  and  criticism  were  the  ones 
dealing  with  betrothal  and  divorce.  According  to  the  old 
code  the  betrothal  was  a  formal  act  and  could  not  lightly  be 

^Forsta  Kammarcns  Protokoll,  nr.  63,  1915,  pp.  12-14. 


56  Marriage  and  Divorce 

broken.  The  fact  that  it  formed  a  bar  to  a  new  marriage  so 
long  as  it  was  undissolved  by  ecclesiastical  action  was  its 
most  important  feature.  The  Commission  was  of  the  opinion 
that  the  betrothal  had.  in  the  course  of  time,  become  a  mere 
preparatory  agreement,  an  engagement,  and  that  "since  its 
main  reason  for  existence  was  to  afford  persons,  who  in- 
tended to  marry,  an  opportunity  to  learn  to  know  each  other, 
unfettered  by  conventions,"  it  was  no  longer  suitable  for  that 
purpose  since  it,  in  principle  at  least,  excluded  freedom  of 
choice  and  bound  the  participants  for  life,  even  though  it  was 
more  easily  dissolved  than  a  marriage.'  One  of  the  best  in- 
dications that  the  old  conceptions  were  no  longer  prevalent 
was  that  "the  binding  nature  of  the  betrothal  and  its  im- 
portance as  an  impediment  to  marriage  is  now  rarely  taken 
advantage  of  by  the  injured  person.  In  fact,  it  is  not  consid- 
ered just  for  him  to  attempt  to  retain  his  betrothed  with  the 
aid  of  the  law.  In  most  cases  he  probably  never  knows  that 
the  law  provides  him  with  the  means  to  do  so.  With  the 
rise  of  a  more  deeply  ethical  conception,  according  to  which 
marriage  should  first  of  all  be  built  upon  mutual  love  and 
sympathy,  betrothal,  as  an  impediment  to  a  new  marriage, 
has  lost  its  foothold  in  public  opinion.""  This  led  the  Com- 
mission to  suggest  that  betrothals  be  entered  into  informally 
and  as  informally  broken.  "It  should  be  enough  that  the  be- 
trothed agree  to  dissolve  the  betrothal  or  that  one  of  them 
signifies  his  intention  to  withdraw  his  agreement."^  The  pro- 
posed wording  of  the  law,  "betrothal  exists,  when  a  man  and 
a  woman  have  agreed  to  marry",  was  attacked  because  of  its 
"looseness"  and  was  finally  changed  by  the  Riksdag  to  read, 
"Betrothal  exists,  when  a  man  and  a  woman,  by  exchange  of 
rings,  in  the  presence  of  witnesses  or  otherwise,^  have  signi- 
fied their  intention  to  marry. "^  The  significance  of  the  chang- 
ed wording  is  not  quite  clear  to  the  writer,  since  the  words 
"or  otherwise"  seem  to  nullify  the  expected  improvement. 

The  incomplete  marriage  of  the  old  civil  code  has  re- 
ceived no  place  in  the  new  law.  These  marriages  were  or- 
iginally instituted  to  provide  a  place  in  the  law  for  the  old 

'•'Laghcredningcns  forslag,  etc.,  I,  p.  107. 
''Ibid,  p.   108. 
''Ibid,  p.   109. 
*My  italics. 
^See  Appendix. 


Legislation  in  Sweden  57 

civil  marriage  and  were  to  be  confirmed  by  a  religious  cer- 
emony. Now,  their  real  purpose  is  to  enable  a  woman,  who 
has  become  pregnant,  to  gain  restitution  from  her  lover,  in 
case  he  has  deserted  her.  If  such  a  situation  exists,  the  new 
law  tries  to  protect  the  woman  by  provisions  built  on  the 
theory  of  financial  responsibility.  These  provisions  are  prob- 
ably more  eft'ective,  since  it  gives  the  woman  an  opportunity 
to  get  damages  should  the  man  have  no  real  property,  a 
frequent  occurrence  during  the  regime  of  the  old  civil  code, 
which  resulted  in  the  woman  receiving  nothing  at  all,  since 
the  law  gave  her  a  marital  property  right  in  his  property, 
real  and  personal,  while  giving  her  no  claim  to  his  savings 
or  his  income.  Therefore,  if  the  woman  becomes  pregnant 
during  the  betrothal  and  the  man  later  causes  a  dissolution 
of  their  relationship,  she  is  entitled  to  financial  compensa- 
tion, unless  the  man  is  under  eighteen  years  of  age,  when  he 
is  not  liable.  The  court  shall,  in  its  deliberation,  take  into 
consideration  not  only  the  financial  loss  which  the  woman 
may  have  incurred  by  loss  of  position  or  a  loss  of  health  but 
also  the  spiritual  loss,  which  she  has  suffered,  and  the  humil- 
iation to  which  she  has  been  subjected.  The  law  has  found 
it  impossible  to  maintain  this  point  of  view  consistently, 
however.  In  case  the  betrothal  is  dissolved  by  the  man's 
death,  the  law,  for  the  protection  of  the  mother-to-be,  gives 
her,  should  she  be  in  need,  a  right  to  a  reasonable  part  of 
the  man's  estate,  though  not  exceeding  one-half  of  it. 

If  no  cohabitation  has  taken  place  and  the  betrothal  is 
broken,  it  is  in  accord  with  the  spirit  of  the  law  that  no  com- 
pensation should  be  granted  the  injured  person,  unless  the 
latter  has  already  begun  preparations  in  view  of  the  impend- 
ing marriage,  in  which  case  she  may  recover  damages  from 
the  other,  unless  the  latter  was  under  age  and  entered  the 
betrothal  without  his  guardian's  consent.  The  dissolution  of 
the  betrothal  entitles  each  of  the  betrothed  to  the  return  of 
the  gifts  he  has  given  the  other  in  view  of  the  marriage.  The 
one,  who  has  been  the  cause  of  the  rupture,  however,  loses 
this  privilege. 

The  idea  that  it  would  be  possible  for  a  man  and  a  woman 
to  enter  a  secret  agreement  to  marry,  an  agreement  which 
could  be  as  easily  broken  as  made  and  which  had  no  serious 
legal  consequences  except  in  cases  where  conception  had 
taken  place,  was  repugnant  to  many  members  of  the  Rigs- 


58  Marriage  and  Divorce 

dag.  Mr.  Rav,  in  a  speech  in  the  Second  Chaml^er  informed 
his  colleagues  that,  so  far  as  he  could  see,  the  hetrothal 
savoured  more  of  a  business  transaction  than  of  troth.  "A 
man  and  a  woman  make  a  business  agreement  that  they  shall 
begin  or  end  a  marriage.  There  is  no  thought  that  troth,  a 
g-ood  old  Swedish  virtue,  should  last  a  life  time."^^ 

Another  subject  for  discussion  was  the  proposed  total 
abolition  of  the  incomplete  marriages,  which  institution  was 
defended  in  the  First  Chamber  by  Prof.  Steffen,  the  sociolo- 
gist. Professor  Steffen  held  that  the  law  should  give  to  be- 
trothals the  character  of  an  incomplete  marriage,  in  case  the 
woman  has  become  pregnant.  "I  believe,"  he  said,  "that 
a  custom  that  will  only  gradually  disappear  among  our  peo- 
ple, will  in  such  manner  be  given  a  legal  protection,  which 
will  save  it  from  sinking  to  a  lower  ethical  level.  We  neither 
can  nor  should  remove  the  preparatory  agreements  and  rela^ 
tions,  which  result  in  marriage.  But  neither  can  we  hinder 
that  these  betrothals  and  relations  often,  and  among  certain 
classes  very  often,  become  a  kind  of  incomplete  marriage, 
due  to  sexual  relations  and  pregnancy,  which  follow  the 
betrothal.  Since  real  life  is  such,  it  is  necessary  that  our 
laws  should  take  it  into  consideration.  What  should  this 
consideration  include?  It  would,  of  course,  include  legisla- 
tion which  guarantees  the  maintenance  of  the  woman's  and 
the  children's  idealistic  as  well  as  social  and  economic  posi- 
tion, in  case  the  betrothal  is  complicated  by  physical  union, 
pregnancy,  and  childbirth,  and  the  man  refuses  to  complete 
the  marriage.  It  seems  reasonable  and  in  accord  with  a 
sound  sense  of  honor  that  our  laws  should  protect  the  woman 
against  the  social  misfortune  of  bearing  an  illegitimate  child 
and   later   force   her   to   bring   it   up,   alone   and   without   the 

married    woman's    name Instead    of    this    the    proposeti 

law  gives  her  nothing  but  'financial  compensation'  "."  A 
similar  opinion  was  voiced  by  Senator  Stadener,  who  decried 
the  fact  that  the  old  law  provision  had  been  left  out  which 
held  that  a  betrothal  existed  as  soon  as  the  parties  to  it  had 
asked  for  publication.  Both  he  and  Professor  Thyren  point- 
ed out  that  among  the  common  people  more  than  half  of  the 

^"Andra  Kanunarcns  Protokoll,  nr.  71,  1915,  p.  30. 

'^^Forsta  Kaiiiwarens  Protokoll,  nr.  64,  1915.  The  Law  of  Children 
Born  out  of  Wedlock,  passed  in  1917,  has  removed,  in  part,  Prof.  Steffen's 
objections. 


Legislation  in  Stvcdcn 


59 


marriages  are  really  begun  immediately  after  the  Publication 
has  been  applied  for  and  that  such  pubhcation  -  st^  looked 
upon  as  binding  the  candidates  in  a  umon     which  shall  be 

completed  by  a  ceremony."^'  . 

As    to   the    impediments    to    marriage,    the 
Disabilities  ^^^  j^^^  is  in  some  respects  more  lenient, 

and    in    others    harsher    than    the    old    code.     Certain    considera- 
tions alien  to  the  people  of  an  earlier  age    have  led  to  more 
stringent  regulation   of   the   age  and   heakh   requirements   o 
the    candidates.     The    Commission    was    also    guided    m    its 
deliberations  by  the  fact  that  the  niarnage  rate  m  Sweden 
is  remarkably  low^^^  and  that  therefore  the  entrance  into  mar- 
riage should  not  be  made  unduly  difficult.     "Just  as  society 
sees  in  marriage  the  only  desirable  form  o    sexual  relations 
so  is  marriage  something  so  valuable  to  the  happiness  an 
personal  development  of  the  individual  that  he  should  not  be 

excluded  from   it  except  for  the  most  serious  reasons 

Various  economic  and  social  conditions  constitute  such  great 
obstacles    to    marriage    that    the    legislator    should    care  uHy 
weigh  the  advisability  of  adding  legal  disabilities  to  them. 
The  Commission  also  emphasized  the  necessity  o    consider- 
in-  the  problems  of  public  heaUh.    "By  the  race  hygiene  of 
today,   eugenics,   increasingly  strong  demands  are  made  tor 
legislation,  which  shall  safeguard  the  future  generations  and 
intprove  the  human  race.     This  movement  aims  to  hght  not 
only  those   dangers  to   public   health,  which   are   created  by 
phenomena  such  as  emigration,  industrialism,  or  the  massing 
of  people  m  great  cities,  but  also  the  race  poisons,  such  as 
syphilis,  tuberculosis,  and  alcohol.    It  will,  consequently,  en- 
courage society  to  conscious  eiTorts  to  raise  the  marriage  rate 
in  its  better  qualified  groups,  while  preventing  the  propaga- 
tion of  the  unfit.     The  steps  to  be  taken  in  the  first  case  are 
primarily  of  economic  nature  and  therefore  outside  the  realm 
of  family  legislation,  from  which  one  demands  that  it  should 
prevent  the  marriages  of  those  who  are.  from  a  eugenic  point 
of  view    unfit  and  also  provide  means  for  the  dissolution  ot 
such  marriages."!-^     To  be  able  to  act  wisely  m  this  matter 
and  in  accord  with  the  above  expressed  conviction,  the  Com- 


^-Ibid,  nr.  75,  I9i5,  P-  3i- 
i^See  page  109. 
^*Lagheredningcns  forslag,  etc.  I,  pp.  129-30. 

^^Ibid,  p,  131- 


60  Marriage  and  Divorce 

mission  asked  the  Medical  Faculty  of  the  University  of  Upp- 
sala to  give  its  opinion  : 

I — in  regard  to  the  advisability  of  retaining  the  stipulations 
with    reference    to    marriageable    age    and    relationship    as 
impediments   to   marriage    and,    in   regard    to    the    former, 
if  the  law  should  be  made  to  conform  with  the  Danish  and 
Norwegian  law,  which   places  the   minimum   age  of   mar- 
riage at  sixteen  for  the  woman  and  twenty  for  the  man. 
2 — in  regard  to  the  advisability  of  considering,  under  certain 
conditions,  epilepsy,  leprosy,  insanity,  venereal  disease,  al- 
coholism, other  illnesses,  impotence  and  physical  defects, 
as  impediments  to  marriage  or  ground  for  annulment. 
3 — if,  and  to  what  extent,  punishments  should  be  prescribed 
for  a  spouse,  who  infects  the  other  with  venereal  disease 
or  exposes  him  to  such  infection. 
4 — if,  and  to  what  extent,  legislative  action  should  be  taken 
to  prevent  the  spread  through  marriage  of  "inheritable"  or 
infectious  diseases.^" 

On  the  basis  that,  in  the  question  of  marriages,  the  most 
desirable  features,  from  a  social  and  a  medical  point  of  view, 
are  a  normal  marriage  rate,  a  fertility  which  is  sufficient  and 
which  results  in  the  best  possible  type  of  offspring,  the  best 
possible  conditions  for  the  personal  hygiene  of  the  spouses 
in  and  through  the  marriage,  their  greatest  possible  happi- 
ness and  satisfaction  therein,  and  a  satisfactory  stability  of 
the  union,  the  Faculty  answered  the  Commission  that  thor- 
ough research  showed  no  real  reason  why  the  minimum  mar- 
riage age  for  the  woman  should  be  raised.  A  lowering  of  the 
age  in  accordance  with  Danish  and  Norwegian  law  was, 
from  a  medical  point  of  view,  inadvicable,  but  there  was  no 
reason  why  Royal  dispensation  should  not  be  given  in  special 
cases  where  the  candidates  had  not  reached  the  marriageable 
age.  Even  then,  it  would  be  wise  to  establish  a  certain  min- 
imum age,  probably  coinciding  with  the  age  of  consent  (fif- 
teen for  the  woman  and  eighteen  for  the  man)  below  which 
dispensation  could  not  be  given.  An  application  for  dispen- 
sation should  also  be  accompanied  by  a  medical  certificate. 
There  was  no  necessity  for  retaining  a  lower  marriageable 
age  for  the  Laplanders,  since  inquiry  had  shown  that  in  1900, 

i«/6irf,  p.  524. 


Legislation  in  Szveden  61 

out  of  6,983  Laplanders,  no  man  and  only  one  woman  under 
twenty  years  of  age  was  married. 

In  regard  to  the  blood  relationship,  the  Faculty  was  doubt- 
ful if  marriages  between  uncle  and  niece,  aunt  and  nephew 
should  be  permitted.  Such  unions  should  certainly  not  be 
entered  into  except  by  Royal  permission  and  even  then  only 
when  the  application  was  substantiated  by  duly  authorized 
testimony  in  regard  to  the  good  health  and  good  constitu- 
tional heredity  of  the  candidates. 

As  to  epilepsy,  the  Faculty  proposed  that  epilepsy,  which 
is  not  due  to  exogenic  causes,  should  be  made  an  impediment, 
but  that  Royal  dispensation  should  be  available  on  petition, 
on  the  condition  that  such  dispensation  should  grant  mar- 
riage with  a  specific  person  and  should  be  made  only  upon  the 
basis  of  an  authoritative  medical  certificate  showing  the  pe- 
titioners' health  and  constitutional  heredity.  Possible  rela- 
tionship between  them  and  the  opinion  of  the  Royal  Medical 
Board  must  also  be  taken  into  consideration.  Any  one,  who 
is  or  can  with  reason  be  suspected  of  suffering  from  some 
form  of  epilepsy  should  be  denied  the  right  to  marry,  unless 
he  presents  a  medical  certificate,  approved  by  the  Royal 
Medical  Board,  showing  that  he  is  free  from  such  illness. 

As  to  insanity  and  kindred  psychical  derangements,  the 
Faculty  suggested  that  existing  insanity  and  feebleminded- 
ness, previous  insanity  due  to  endogenic  causes,  and  psychic 
or  moral  defects  of  more  serious  nature,  forming  a  particular 
danger  for  the  spiritual  development  of  the  offspring,  should 
form  impediments  to  marriage.  Dispensations  should  be 
granted  only  under  conditions  similar  to  this  previously  sug- 
gested in  case  of  epilepsy.  A  person  who  has  been  insane 
or  who  for  good  reason  could  be  suspected  of  being  insane 
or  feebleminded  or  psychically  abnormal  should  not  be  al- 
lowed to  marry  without  a  medical  certificate  approved  by 
the  Royal  Medical  Board  showing  him  to  be  free  from  the 
psychical  abnormalities  mentioned.  The  same  procedure 
should  be  required  in  the  case  of  persons,  who  have  been 
sentenced  for  more  serious  crimes,  criminal  repeaters,  or 
vagrants. 

It  was  suggested  that  venereal  disease  in  an  infectious 
stage  be  made  an  impediment  to  marriage.  As  to  alchohol- 
ism  and  leprosy  no  recommendation  was  made,  neither  did 


62  Marriage  and  Divorce 

the  Faculty  wish  to  propose  that  physical  defects,  such  as 
deafmutism,  etc.,  be  made  impediments. 

In  answer  to  the  question  regarding  punishment  for  a 
spouse,  who  has  exposed  his  mate  to  infection  from  venereal 
disease,  the  suggestion  was  made  that  it  would  be  more  ad- 
visable to  pass  positive  legislation  providing  for  isolation 
and  hospital  care  for  diseased  people.  No  legislative  action 
for  the  prevention  of  the  spread  of  inheritable  defects  was 
advised  except  that  all  candidates  for  marriage,  who  were 
suspected  of  suffering  from  such  defects  should  be  required 
to  bring  medical  certificates  of  their  fitness.^' 

After  due  consideration  of  this  expert  opinion,  the  Com- 
mission drafted  the  chapter  dealing  with  the  impediments. 
The  marriageable  age  of  the  woman  has  been  raised  to  eight- 
een, while  that  of  the  man  remains  at  twenty-one.  No  change 
has  been  made  in  the  King's  power  of  granting  dispensations 
in  case  of  candidates  below  the  above  ages.  Since  there  is 
nothing  to  indicate  that  the  Laplanders  need  to  be  treated 
differently  from  the  rest  of  the  inhabitant?,  the  old  civil 
code  stipulation  in  favor  of  a  lower  marriageable  age  for 
them  has  been  abolished. 

All  persons  intending  to  marry  before  reaching  the  age  of 
21  must  have  their  parents'  or  guardians'  consent.  This  also 
applies  to  persons  who  have  been  placed  under  guardian, 
after  reaching  the  age  of  majority.  The  rule  is  nullified  only 
in  case  of  those  who  have  alread}^  been  married.  The  old 
sequence  of  guardianship'''  has  disappeared  and  unless  one 
parent  is  absent  or  incapacitated,  the  consent  of  both  parents 
is  necessary.  In  requiring  the  consent  of  both  parents  and  in 
placing  the  man  under  the  marriageable  age  on  a  par  with 
the  woman,  the  law  departs  from  the  old  civil  code.  The  re- 
fusal of  consent  must  be  based  on  sufftcient  cause,  or  the 
court  might  be  appealed  to  for  aid. 

In  accordance  with  the  recommendation  made  by  the  med- 
ical experts,  "epilepsy,  which  is  mainly  due  to  internal 
causes"  has  been  retained  as  an  impediment  to  marriage,  and 
to  this  insanity  and  feeblemindedness  have  been  added,  which, 
although  not  mentioned  as  impediments  in  the  old  code,  can 
be  said  to  have  served  as  such  since  feeblemindedness  in  most 

^Ubid,  pp.  532-552. 
18  See  page  18,  note. 


Legislation  in  Szvcdcn  63 

cases  and  insanity  in  practically  all  cases  precluded  the  power 
of  making  valid  contracts.  Venereal  disease  in  an  infectious 
stage  is  the  most  important  addition  to  the  legal  impediments, 
all  of  which,  with  the  exception  of  feeblemindedness  and  in- 
sanity, which  are  absolute,  can  be  set  aside  by  Royal  dispen- 
sation, granted  on  the  merits  of  the  individual  case. 

Important  modifications  have  been  made  in  respect  to 
the  impediments  arising  out  of  blood  relationship.  In  line 
with  former  legislation,  marriage  between  persons  in  directly 
ascending  or  descending  line  has  been  prohibited  and  so  has 
marriage  between  brother  and  sister.  Marriage  between 
uncle  and  niece  and  aunt  and  nephew  are  now  possible  in 
special  cases,  if  Royal  permission  has  been  granted ;  the  old 
code  forbade  these  marriages.  On  the  other  hand,  marriage 
is  prohibited  between  persons,  one  of  whom  has  been  married 
to  the  other's  relative  in  directly  ascending  or  descending 
line,  a  prohibition  which  was  seriously  questioned  on  the 
floor  of  the  Riksdag,  and  which  should  not  have  been  made 
absolute.  The  law  has  abolished  the  old  affinity  rule,  which 
placed  a  relationship  based  on  cohabitation  alone  on  a  par 
with  that  of  a  marriage,  as  far  as  impediments  were  concern- 
ed. The  old  "confusio  graduum"  has  disappeared.  The  law 
also  forbids  the  marriage  of  a  parent  and  an  adopted  child 
so  long  as  the  adoptive  relationship  exists. 

An  explicit  prohibition  against  bigamy  is  found  in  the  new 
law.  It  is  to  be  remembered  that,  although  the  criminal  law 
provided  punishment  for  bigamy,  no  former  law  actually 
prohibited  it. 

For  the  purpose  of  establishing  paternity,  no  woman  is 
permitted  to  enter  a  new  marriage  until  ten  months  have 
passed  since  the  dissolution  of  the  former  marriage.  If  she 
can  prove,  however,  that  no  marital  relations  have  existed 
between  her  and  her  husband  for  ten  months  previous  to  the 
new  marriage,  this  prohibition  shall  be  set  aside.  The  mourn- 
ing period,  both  for  widow  and  widower,  has  been  abolished. 

The  incomplete  marriage  of  the  old  code  no  longer  forms 
a  bar  to  marriage ;  it  has  been  abolished.  The  former  im- 
pediment arising  out  of  the  fact  that  a  person  who  desired 
to  enter  a  new  marriage  had  failed  to  divide  the  property  of 
the  deceased  spouse,  has  received  no  place  in  the  law. 
Neither  does  adultery  any  longer  bar  a  person  from  marry- 
ing the  one  with  whom  the  adulterous  relationship  existed. 


64  Marriage  and  Divorce 

A  temporary  impediment  exists  for  the  person,  who,  after 
the  reading  of  the  transcript  notice  or  the  publication  of 
banns,  fails  to  complete  the  intended  marriage.  For  him  a 
period  of  four  months  must  elapse  before  another  transcript 
is  issued,  unless  his  jilted  betrothed  dies.  This,  however, 
cannot  be  said  to  be  an  impediment  in  the  usual  sense. 

.  As  a  means  of  discovering  the  existence  of 

Publication  of  impediments,  the  publication  of  banns 
^"""■^'  serves  a  useful  purpose.    It  has  been  point- 

ed out,  however,  that  it  was  usually  in  cases,  where  the  ap- 
plicant was  bound  by  an  earlier  betrothal,  by  an  incomplete 
marriage,  or  by  the  failure  to  settle  his  estate,  that  the  pastor 
was  informed  of  the  existence  of  a  disability.  Since  all  these 
impediments  have  been  left  out  of  the  new  law,  the  question 
has  naturally  been  raised,  whether  or  not  the  publication 
can  be  expected  to  be  effective.  It  has  been  retained  in  the 
hope  that  a  public  announcement  of  an  impending  marriage 
may  deter  those  from  applying  for  publication,  who  shrink 
from  publicity  because  they  know  that  people  are  familar 
with  their  disabilities.  It  is  also  hoped  that  such  an  an- 
nouncement will  actually  prompt  persons  to  inform  the  min- 
ister of  existing  impediments.  Last  of  all,  but  not  least  im- 
portant, it  makes  a  hasty  marriage  impossible. 

It  is  quite  natural  that,  although  the  publication  now 
serves  a  civil  and  no  longer  an  ecclesiastical  purpose,  it 
should  be  in  the  hands  of  the  clergy,  which  have  for  centu- 
ries, through  the  parish  record,  been  the  registrars  of  vital 
statistics,  a  function  delegated  to  them  by  the  state.  Since 
the  state,  as  a  result,  lacks  the  facilities  which  would  make 
possible  effective  statistical  work  in  this  field,  the  clergy, 
in  their  capacity  of  parish  registrars,  have  become  the  pub- 
lishers of  the  banns  of  marriage,  a  situation  which  may 
change  at  any  time  should  the  state  decide  to  make  provisions 
for  civil  registries. 

Publication  shall  take  place  in  the  parish,  where  the  wo- 
man is  registered  or  where  she  resides,  in  case  she  should 
not  be  registered  there.  Both  betrothed  must,  in  person, 
make  application  for  publication  to  the  minister  in  charge  of 
the  registry.  Before  issuing  the  publication  notice  he  must 
make  a  careful  investigation  for  the  purpose  of  ascertaining, 
if  there  is  any  possible  impediment  to  the  union. 

If  the  man  is  registered  in   some  other  parish,   he   must 


Legislation  in  Sweden  65 

bring-  a  transcript  of  the  record  of  his  parish,  issued  by  the 
proper  registrar  and  showing  his  qualifications  for  the  mar- 
riage.^'' This  transcript,  which  cannot  be  issued  until  the 
consent  of  the  woman  has  been  obtained,  specifies  by  name 
the  woman  he  is  to  marry  and  gives  information  regarding 
existing  impediments  of  relationship,  etc.  It  serves  as  an 
aid  to  the  minister  who  must  investigate  the  application  and 
is  not  meant  as  a  substitute  for  this  investigation.  Usually 
the  applicant's  age  is  given  in  the  transcript  but  should  it 
be  lacking,  he  must  present  other  evidence  in  this  respect, 
and  if  either  petitioner  is  under  age,  the  King's  permission 
must  also  be  presented,  as  well  as  that  of  parents  or  guard- 
ians, should  their  consent  be  necessary. 

Each  applicant  for  publication  of  banns  must  present  an 
affidavit  that  he  is  not,  so  far  as  he  knows,  suflering  from 
venereal  disease  in  an  infectious  stage ;""  that  he  is  not  re- 
lated to  his  betrothed,  directly  or  by  marriage,  as  stated  in 
chapter  2.  Paragraphs  2  or  9 ;  and  that  no  relationship,  as 
stated  in  paragraph  8  of  the  chapter  mentioned,  exists  be- 
tween them.  The  affidavit  must  also  contain  information 
whether  or  not  he  has  been  previously  married.  If  the  reg- 
istrar has  reason  to  suspect  that  the  applicant  is  feeblemind- 
ed or  insane  or  has  been  insane  within  the  preceding  three 
years,  he  shall  demand  a  medical  certificate  showing  that 
the  applicant  is  free  from  the  afi^ections  mentioned.  A  sim- 
ilar certificate  of  freedom  from  idiopathic  epilepsy  must  also 
be  presented,  should  the  registrar  suspect  that  the  applicant 
is  epileptic.  In  case  the  applicant  has  been  previously  mar- 
ried,  he   must  present  proof   that   the   marriage   is  dissolved, 

i"A  foreigner  must,  if  possible,  present  a  corresponding  certificate 
from  his  home  parish. 

2"In  December,  1915,  the  following  Royal  decree  was  issued :  If  a 
physician  has  treated  any  one  for  venereal  disease  and  said  person  shows 
symptoms  that  the  disease  is  infectious  or  that  infectiousness  is  likely  to 
appear,  he  shall,  whether  or  not  he  is  still  in  the  service,  if  the  patient  is 
likely  to  marry,  privately  and  in  a  suitable  manner  inform  him  of  the 
legal  prohibition  against  his  marrying  without  the  King's  permission.  If 
he  discovers  that  the  patient  intends  to  marry  without  such  permission,  he 
shall,  without  being  hindered  by  paragraph  60  in  the  instructions  for  phy- 
sicians of  Dec.  30,  191 1,  immediately,  and  in  writing,  inform  the  pastor 
of  the  parish  where  the  patient  is  registered.  The  pastor  shall,  in  case  the 
transcript  is  or  will  be  issued,  immediately  transmit  the  information  to  the 
authority  with  whom  information  in  regard  to  disabilities  should  be  lodged. 
Svensk  Forfattningssamling,  1915,  nr.  485. 


66  Marriage  and  Divorce 

should  the  parish  record  or  the  transcript  lack  this  informa- 
tion;  or,  in  the  case  of  the  woman,  that  the  impediment  re- 
ferred to  in  chapter  2,  section  11,  does  not  exist.  In  all 
cases,  where  Royal  dispensation  has  been  obtained,  the 
necessity  of  obtaining  proofs  or  affidavits  is  obviated. 

As  soon  as  the  minister  has  made  certain  that  so  far  as 
his  investigation  can  reveal,  no  impediment  to  the  marriage 
exists,  he  shall  immediately  issue  a  notice  of  publication, 
which  is  to  be  read  from  the  pulpit  of  the  parish  church  three 
Sundays  in  succession ;  the  first  reading  to  be  made  the  Sun- 
day following  the  week,  during  which  the  publication  was  ap- 
plied for.  The  notice  shall  contain  the  names,  the  addresses, 
and  the  occupations  of  the  candidates.  Should  the  man  hap- 
pen to  be  registered  in  another  parish,  the  minister  of  his 
parish  shall  read  a  notice  from  his  pulpit  the  Sunday  follow- 
ing the  week  during  which  he  applied  for  a  transcript  of  the 
the  parish  record.  This  notice,  in  addition  to  the  information 
found  in  the  publication  notice,  shall  also  state  the  place 
where  information  regarding  impediments  to  the  marriage 
can  be  lodged,  thereby  making  it  more  assured  that  a  mar- 
riage does  not  occur  in  the  face  of  disabilities.  Any  informa- 
tion of  this  nature,  which  may  reach  the  proper  minister 
shall  be  tested  by  him  before  any  decision  is  made.  Should 
he  refuse  to  issue  the  notice  of  publication,  his  decision  may 
be  appealed  to  the  cathedral  chapter  and,  in  case  the  chapter 
upholds  him,  to  the  Supreme  Court. 

If  the  publication  has  been  completed  and  no  impediments 
have  come  to  the  minister's  notice,  he  shall  issue  a  certificate 
of  publication,  which  states  that  publication  has  taken  place 
in  due  order  and  that  no  impediments  have  been  found  to 
exist.  Upon  the  basis  of  this  certificate,  the  civil  or  religious 
ceremony  can  be  performed  . 

There  are  times  when  the  inflexibility  of  the  law  might 
do  much  harm ;  consequently,  there  have  been  special  conces- 
sions made  in  certain  cases.  If  a  betrothed  is  dangerously 
ill  or  if  the  man  has  been  called  to  arms  against  the  enemy, 
publication  may  be  dispensed  with.  Even  in  these  cases, 
the  requirements  as  to  impediments  must  be  filled. 

The  only  provision  which  was  attacked  by  members  of 
the  Riksdag,  was  the  one  requiring  affidavits  of  both  the  man 
and  the  woman,  or  as  the  law  literally  reads,  "written  state- 
ments   made    on    honor    and    conscience,"    that    they    do    not 


Legislation  in  Szvedcn  67 

suffer  from  venereal  disease  in  an  infectious  stage.  Senator 
Trygger  felt  that  to  vote  for  this  provision  would  be  "the 
most  revolting  thing  he  had  faced  during  his  entire  parli- 
amentary career.-^  Senator  av  Ekenstam  expressed  as  his 
opinion  that  he  "considered  as  most  revolting  a  requirement 
that  forced  young  girls  to  make  such  declarations".  "I  do 
not  believe",  he  said,  "that  the  Swedish  people  has  fallen  so 
low  nor  that  our  women  have  so  lost  their  virtue  that  they 
need  to  make  such  declarations.  This  conviction  is  not  sub- 
jective only,  but  can  be  supported  by  statistics I   shall 

only  say  that,  if  Stockholm  and  Gothenburg  be  excepted,  the 
percentage  of  venereally  diseased  women  is  so  small  that  if 
we,  because  of  the  one  hundredth  part  of  one  percent  that 
are  found  in  the  rest  of  the  countrv,  should  demand  of  all 
girls  such  declarations  it  would  be  a  sacrilege.  I  do  not  be- 
lieve that  the  people  would  thank  our  legislators  for  such  an 
action.  They  would  undoubtedly,  like  myself,  feel  that  such 
a  position  would  be  materialistic.  All  the  delicate  sense  of 
tact,  which  should  appear  in  this  matter,  has  flown  and,  in- 
stead, one  thinks  as  a  physician  does  of  his  patients,  giving  no 
consideration  to  what  is  moving  in  the  realm  of  the  spiritual 
life.""-  The  Commission  was,  of  course,  fully  aware  of  the 
fact  that  there  might  be  some  indignation  felt  in  individual 
cases  but  hoped  that  as  the  custom  grew  of  instructing  the 
youth  of  the  country  in  sexual  hygiene,  the  objections  would 
disappear.  In  spite  of  the  gallant  champions  which  the 
women  of  Sweden  had  in  the  Senate,  many  of  these  women 
welcomed  the  provision  because  of  its  importance  for  public 
health  and  opposed  its  abolition,  so  far  as  they  were  concerned, 
because  it  would  simply  emphasize  the  double  standard. 
Senator  von  Koch,  in  a  short  speech,  took  the  occasion  to  read 
the  following  letter  written  to  the  legislative  committee  by  a 
group  of  representative  women.  "We  concur  in  the  sugges- 
tion of  the  Royal  Proposition  in  regard  to  the  duty  of  the 
woman,  as  well  as  of  the  man,  to  present,  at  the  time  the 
publication  of  banns  is  asked,  a  written  declaration,  on  honor 
and  conscience,  that  she  does  not  suffer  from  venereal  disease 
in  an  infectious  stage.  We  can.  therefore,  not  support  Sen- 
ator   Ekman's    opinion,   expressed    in    his   bill,    nr.   68,    F.    K. 

^^Forsta  Kaininareiis     Protokoll,  nr.  64,  1915,  p.  39. 

'--Ibid,  p.  35- 


68  Marriage  and  Divorce 

that  such  a  declaration  contains  anything  insulting  to  the 
woman.  It  should  be  assumed  that  a  woman  who  enters 
marriage  is  sufficiently  mature  to  realize  that  this  provision 
has  been  made  in  the  interest  of  society."*^ 

The  cathedral  chapters,  which  had  been  asked  for  opinion 
on  this  point,  were  divided  on  the  question,  although  the 
majority  left  the  paragraph  without  criticism.  Those  that 
found  fault  with  it  did  so  not  because  of  the  spirit  of  the  law 
but  because  of  its  wording.  The  Cathedral  Chapter  of 
Vasteras  wrote,  "The  proposed  declaration  by  the  applicant 
for  publication  of  banns  regarding  freedom  from  venereal 
disease  in  an  infectious  stage,  might  of  course,  cause  some 
difBculties,  but  when  the  desirability  of  such  a  declaration  is 
so  forcefully  championed  in  medical  circles  and  without  doubt 
would  aid  in  combatting  a  social  evil,  the  Chapter  does  not 
deem  it  wise  to  suggest  its  abolition,  hoping  that  a  wording 
shall  be  found,  which  in  a  fine  and  tactful  manner  can  re- 
move the  most  objectionable  features  in  this  delicate  mat- 
ter."^* 

T,,     ^  In    its    provisions    regarding    the    marriage 

1  he  Lcrcmoux  ^u  i         r  n  ^u     i 

ceremony,  the  new  law  follows  the  law  ot 

1908  quite  closely.  It  consequently  rests  on  the  elective  prin- 
ciple, the  principle  of  freedom  of  choice  between  the  religious 
and  the  civil  ceremony.  It  differs  somewhat  from  the  law 
of  1908-'  in  that  the  right  to  a  religious  ceremony  has  been 
extended,  the  civil  celebrants  have  been  increased  in  num- 
ber, and  a  definite  statement  has  been  made  as  to  what  con- 
stitutes the  necessary  elements  of  the  ceremony  and  what 
the  effects  on  the  validity  of  the  marriage  are,  should  any 
of  these  elements  be  dispensed  with. 

The  law  of  1908  reserved  the  religious  ceremony  to  mem- 
bers of  the  State  Church,  who  had  partaken  of  its  sacraments, 
or  who  had  received  religious  instruction  by  a  minister  of 
that  Church  and  b}^  him  found  prepared  to  receive  the  sacra- 
ment upon  confirmation ;  and  to  betrothed,  who  were  mem- 
bers of  the  same  alien  faith,  the  ministers  of  which  were  by 
Royal  permission  authorized  to  celebrate  marriages.  The 
privilege  of  a  religious  ceremony  is  now  extended  to  mixed 
marriages,    where    the    betrothed    are    members    of    dift'erent 

■^Hbid,  p.   39- 

^^Quoted  in  Lagtitskottcts  utldtande  nr.  22,  1915,  pp.  23-24. 

-^See  page  28. 


Legislation  in  Sweden  69 

denominations.  In  this  respect  the  law  has  reverted  to  the 
position  held  before  1908.  Within  the  State  Church  a  cere- 
mony between  a  member  of  that  Church  and  one  belonging 
to  some  other  Christian  faith  can  now  be  celebrated.  Min- 
isters of  alien  denominations  with  celebration  rights  can 
unite  in  marriage  their  own  parishioners  or,  if  the  denomina- 
tion is  Christian,  a  parishioner  and  a  member  of  some  other 
Christian  denomination.  It  is  to  be  observed  that  all  the 
prerequisites,  such  as  preparation  for  the  sacrament,  etc., 
are  removed  for  members  of  the  State  Church.  The  Royal 
Proposition  contained  a  suggestion  that  no  unbaptized  Lu- 
theran should,  for  the  purpose  of  marriage  be  regarded  as  a 
member  of  the  State  Church,  but  this  provision  was  not  em- 
bodied in  the  law,  because  of  opposition  by  the  clergy,  who 
felt  that  it  would  seem  peculiar,  if  an  unbaptized  member  of 
an  alien  denomination  could  enjoy  a  religious  ceremony  while 
a  member  of  the  State  Church  could  be  excluded  from  that 
privilege.  A  second  reason  was  the  difficulty  of  ascertaining, 
in  some  cases,  who  have  been  baptized  within  the  Church,  and 
a  third  reason  "that.... as  many  as  possible  should  be  given 
the  opportunity  to  have  a  religious  ceremony  performed  and 
thereby  come  into  contact  with  the  Church  during  a  most 
serious  occasion  in  their  lives."-*' 

The  law,  furthermore,  gives  to  the  King  the  right  to  ex- 
tend to  members  of  L.utheran  Churches  of  other  countries 
the  privilege  of  a  religious  ceremony  performed  by  a  min- 
ister of  the  State  Church.  As  a  result  a  proclamation  was 
issued  on  December  3,  191 5,  giving  this  right  to  members 
of  the  Evangelical  Lutheran  Churches  of  Denmark,  Norway, 
and  Finland  and  to  members  of  the  Evangelical  Lutheran 
Augustana  Synod  of  North  America.^" 

As  celebrant  of  the  religious  ceremony  within  the  State 
Church,  the  betrothed  may  choose  any  minister  of  that 
Church.  Only  ministers  of  their  own  parishes,  however, 
are  duty  bound  to  accede  to  their  request.  Within  other  de- 
nominations the  marriage  must  be  celebrated  by  a  duly  au- 
thorized minister. 

The  civil  ceremony  is  open  to  all,  regardless  of  what 
right  to  a  religious  ceremony  the  candidates  may  have.  The 
law  has  increased  the  number  of  the  celebrants.    In  the  towns, 

-*'Bishop  Bergquist  in  a  speech  in  the  Senate,  May  8,  1915. 
^'^Sz'cnsk  F orfattningssauiUng,  191 5,  nr.  480. 


70  Marriage  and  Divorce 

the  registered  magistrates,  or,  where  there  are  no  magis- 
trates, the  president  of  the  city  council  is  authorized  to  per- 
form the  civil  ceremony.  In  the  country,  the  public  prose- 
cutor of  the  county  remains  as  celebrant  and  in  certain  dis- 
tricts the  Governor  may  appoint  special  functionaries.  This 
provision  was  found  necessary  to  meet  conditions  in  some 
parts  of  the  country,  which,  like  Lappland,  are  sparsely  popu- 
lated, and  where  many  people  have  dispensed  with  the  legal 
ceremony  because  of  the  expense  connected  with  the  far 
journey  to  a  magistrate.  The  special  functionary  mentioned 
is  duty  bound  to  perform  a  marriage  regardless  of  the  resi- 
dence of  the  betrothed.  Should  a  county  prosecutor  happen 
to  reside  in  a  town,  he  is  also  authorized  to  perform  mar- 
riages there,  although  he  is  not  required  to  do  so  unless  one 
or  both  of  the  betrothed  live  in  his  district. 

Whether  a  religious  or  a  civil  ceremony  is  chosen,  the 
candidates  must  present  the  certificate  of  publication  to  the 
celebrant.  Although  the  presumption  exists  that  such  a  cer- 
tificate means  the  absence  of  impediments  to  the  marriage, 
the  celebrant  is  nevertheless  able  to  refuse  to  perform  the 
ceremony  should  he  know  of  some  impediment.  Only  in 
case  the  celebrant  is  the  minister,  who  issued  the  certificate 
in  question,  it  is  unnecessary  to  demand  that  the  candidates 
present  it.  The  life  of  the  certificate  is  usually  four  months, 
but  in  the  case  of  Laplanders,  who  are  leading  a  nomadic 
life,  a  year  may  pass  before  the  certificate  becomes  invalid. 
If  either  betrothed  is  dangerously  ill  or  the  man  is  ready  to 
march  against  the  enemy,  a  certificate  of  publication  is  un- 
necessary. Even  in  such  cases,  the  betrothed  must  bring  to 
the  celebrant  a  transcript  from  the  record  of  his  parish  and 
in  addition  meet  all  the  prerequisites  for  the  issuing  of  a 
notice  of  publication. 

As  for  the  form  of  the  ceremony  itself,  the  law  states  that 
it  shall  be  performed  in  the  presence  of  relatives  or  other 
witnesses.  The  essential  elements  of  the  act  are  the  pres- 
ence of  both  betrothed  before  the  celebrant,  their  affirmative 
consent  to  the  marriage  in  response  to  a  question  by  him, 
and  his  declaration  that  they  are  husband  and  wife.  In  other 
respects  the  ceremony  is  guided  by  the  ritual  of  the  Church 
involved,  or  by  the  form  proclaimed  by  the  King  for  the  use 

health  and  opposed  its  abolition,  so  far  they  were  concerned, 
in  some  cases,  who  has  been  baptized  within  the  Church,  and 


Legislation  in  Sweden  71 

of  civil  celebrants.-®  A  marriage  certificate  is  to  be  given 
the  couple  immediately  after  the  marriage,  and  in  case  the 
civil  ceremony  has  been  used,  a  special  report  of  the  proceed- 
ings must  be  made. 

The  omission  of  any  one  of  the  necessary  elements  of 
the  ceremony  invalidates  it;  so  does  the  fact  that  the  cele- 
brant is  unauthorized  to  perform  it.  If  the  celebrant  exceeds 
his  authority  and  embellishes  the  ceremony  or  performs  the 
marriage  without  the  presence  of  the  witnesses  prescribed  or 
without  the  publication  being  made,  the  marriage  is  not 
invalid.  The  celebrant,  however,  is  liable  to  punishment  on 
the  grounds  of  malfeasance  in  office. 

The  clergy  raised  an  objection  to  the  terminology  of  the 
law,  because  the  Law  Commission  had  extended  the  term 
"vigsel",  formerly  used  only  for  the  religious  ceremony,  to 
cover  the  civil  ceremony  as  well,  the  latter  being  in  former 
laws  referred  to  as  "marriage  entered  into  before  a  civil 
authority."  "Vigsel",  it  was  said,  "is  a  word  with  sacred 
sanction ;  it  implies  a  holy  ceremony.  To  give  legislative 
support  to  a  wrong  use  of  words  in  this  manner  would  help 
to   extinguish   among  our   people   the   reverence   for   all   that 

28December  3,  1915,  the  following  proclamation  was  issued : 

"Sec.  I.  When  the  civil  ceremony  is  to  be  performed  and  the  be- 
trothed appear  before  him,  the  celebrant  shall  say  to  them : 

The  aim  of  marriage  is  the  welfare  of  the  individual  and  the  main- 
tenance of  society.  You  have  signified  your  desire  to  enter  matrimony. 
Do  you,  N.  N.,  take  N.  N.  to  your  wife  for  better  or  for  worse?  Answer: 
Yes.  Do  you  N.  N.  take  N.  N.  to  your  husband  for  better  or  for  worse? 
Answer:  Yes.  Take  each  other's  hands  in  confirmation.  (Before  shaking 
hands,  the  man  can  put  the  ring  on  the  woman's  left  hand).  Empowered 
by  my  office,  I  declare  you  husband  and  wife.  Never  forget  the  promise 
of  life-long  faith,  which  you  have  now  made.  Live  together  in  mutual 
love,  confidence,  and  respect,  and  consider  your  responsibility  to  future 
generations.     May  happiness  and  unity  be  yours  and  bless  your  home. 

"Sec.  2.  What  has  occurred  at  the  ceremony,  the  celebrant  shall  im- 
mediately write  into  a  special  ledger,  giving  among  other  things,  the  time 
and  place  of  the  ceremony  and  the  full  names,  addresses,  and  occupations 
of  the  betrothed. 

A  notation  shall  be  made  in  the  margin  showing  that  the  celebrant  has 
sent  a  notice  of  the  marriage  to  the  proper  parish  registry. 

"Sec.  3.  The  special  celebrant,  appointed  by  the  Governor  in  accord- 
ance with  chapter  4,  sec.  5  of  the  Marriage  Act,  shall  before  the  expirations 
of  the  month  of  January  send  the  Governor  a  transcript  of  the  contents 
of  the  ledger  for  the  j'ear  preceding.  This  transcript  shall  be  kept  by  the 
Governor,  and,  if  he  should  withdraw  the  appointment,  the  ledger  shall  be 
returned  to  him."     Svcnsk  Forfattningssamling,  nr.  481,  1915. 


72  Marriage  and  Divorce 

which  really  has  religious  sanction."-^  It  was  suggested  that 
the  civil  ceremony  be  distinguished  by  a  word  of  less  im- 
portance, a  suggestion  which  the  Commission  had  anticipated 
and  which  it  met  in  the  following  words :  "Until  now  the 
word  'vigsel'  has  in  legal  terminology  been  reserved  for  the 

religious   ceremony In   daily   usage,   however,   the   term 

has  for  some  time  been  applied  to  the  civil  ceremony  as  well, 
and  now  this  usage  seems  to  be  quite  well  established.  Since 
this  is  the  case,  the  Commission  has  not  hesitated  to  .use  the 
term  'vigsel'  to  include  both  forms.  Such  a  change  is  useful 
also  in  the  sense  that  it  aids  in  removing  a  belief  that  a  civil 
marriage  is  of  lower  value  than  one  entered  into  by  the  aid 
of  the  Church,  a  conception  which  it  should  be  to  the  inter- 
est of  the  legislator  to  combat."^" 

It  was  also  proposed  that  the  Riksdag  exclude  from  the 
law  all  provisions  belonging  to  the  realm  of  Ecclesiastical 
Law,  since  it  is  the  business  of  the  Synodical  Congress  to 
pass  such  legislation.  It  was  urged  that  something  should  be 
done  to  enable  ministers  to  refuse  to  officiate,  when  one  or 
both  of  the  candidates  had  been  divorced,  since  the  marriage 
of  divorced  persons  is  repugnant  and  not  in  accord  with 
orthodox  religious  teachings.  The  various  objections  made 
were  embodied  in  resolutions,  which  were  sent  to  the  Synod- 
ical Congress  of  191 5  together  with  a  Royal  letter  asking 
that  the  Congress  pass  upon  the  parts  of  the  Law  dealing 
with  the  religious  ceremony  within  the  State  Church,  pun- 
ishment of  ministers  within  that  Church  for  failure  to  per- 
form their  duty,  and  certain  parts  of  the  promulgation  act.^^ 
After  serious  consideration,  the  Legislative  Committee  gave 
its  opinion  that  "the  term  'vigsel'  to  designate  a  civil  cere- 
mony was  out  of  place  and  without  historical  and  ethymolog- 
ical  basis,"  but  that  it  was  "already  commonly  used  for  the 
civil  ceremony  and  had,  besides,  been  given  legal  sanction  by 
the  new  law  passed  by  the  Riksdag."^-  "Without  denying 
the  weight  of  the  reasons  advanced  against  a  religious  cere- 
mony for  divorced  persons,  the  Committee  must,  nevertheless, 

-^From  motion  in  the  Senate  by  K.  J.  Ekman.  See  Lagutskottets 
utldiande,  nr.  ^2,   1915,  p.   30. 

^^Laghcrcdningens  forslag  etc.  I,  p.  282. 

s^The  law  had  already  been  passed  by  the  Riksdag,  when  this  com- 
munication was  sent. 

^-Kyrkolagntskottets  hetdnkande  nr.  19,  191 5,  p.  9. 


Legislation  in  Sweden  73 

point  out  that  (such)  prohibition  would  also  affect  the  spouse 
who  is  innocent  and  not  responsible  for  the  divorce....  And 
since  existing  legislation  places  just  about  the  same  duties 
upon  a  minister  to  marry  divorced  persons  as  those  imposed  on 
him  by  the  new  law,  the  Committee  cannot  see  any  reason  for 
suggesting  such  a  change. "^^  The  Committee  also  proposed 
to  the  Congress  that  it  adopt  for  incorporation  into  the  Ec- 
clesiastical Law  the  paragraphs,  which  the  government  had 
sent  for  approval,  a  suggestion  which  was  promptly  followed. 

^^Ibid,  p.  10. 


CHAPTER  FIVE 

THE  DISSOLUTION  OF  THE  MARRIAGE 

.        .  The  preceding  chapter  has  pointed  out  that 

formal  detects  in  the  marriage  ceremony 
result  in  the  invalidity  of  the  marriage.  The  subject  of  this 
chapter  is  the  dissolution  of  the  marriage  bond  by  annul- 
ment, separation,  or  divorce.  It  is  particularly  proper  that 
the  matter  of  annulment  be  discussed  in  connection  with  the 
other  forms  of  dissolution,  since  the  new  law  has  given  it  a 
status,  which  in  many  respects  dififers  from  the  usual  one. 

In  the  old  civil  code,  the  stipulations  regarding  annulment 
were  scattered  throughout  the  law  and  carried  no  special 
designation.  In  its  motivation,  the  Law  Commission  states 
that  "the  legal  consequences  [of  an  annulled  marriage]  de- 
pend on  whether  the  marriage  shall  be  theoretically  regarded 
as  void  ab  initio  or  the  legal  efifects  of  the  annulment  shall 
date  only  from  the  time  of  the  annulment."  Formerly  an 
annulment  was  retroactive  and  attempted  to  undo  the  mar- 
riage. This,  however  theoretically  advisable,  has  serious 
practical  difficulties.  "Since  a  formally  valid  marriage  has 
been  entered  into  and  the  candidates  have  been  regarded  as 
husband  and  wife  for  a  period  of  time.... it  would  lead  to 
rather  unfair  consequences  if,  when  the  marriage  is  annulled, 
the  law  would  fail  to  consider  that  a  marriage  has  existed, 
particularly  since  it  is  a  question  of  both  economic  and  spir- 
itual interests.  The  demands  of  justice  and  humanity  would 
undoubtedly  be  better  satisfied,  if  the  conditions,  such  as 
they  have  developed  during  the  marriage,  were  disturbed 
as  little  as  possible  by  the  annulment.  Only  thus  will  the 
law  adjust  itself  to  the  demands  of  real  life."^  The  point  of 
departure  for  the  solution  of  the  problem  is  not  "to  regard 
the  annulment  decree  as  an  explanation  that  the  legal  basis 
of  the  marriage  is  inadequate  and  that  consequently  no  legal 
relationship  has  arisen,  but  to  take  for  granted  that  as  soon 
as    a    formally    corect    ceremony    has   taken    place    a    real    mar- 

^Lagbcredningens  forslag,  etc.  I,  pp.  317-318. 


Legislation  in  Sweden  75 

riage  exists  and  that  an  annulment  dissolved  it.  Such  an  in- 
terpretation seems  also  to  coincide  with  current  legal  con- 
ceptions. It  is  true,  of  course,  that  existing  legal  stipula- 
tions in  regard  to  annulment  give  expression  to  the  theory 
of  nullity,  which  was  formerly  accepted  in  our  country,  but 
nowdays  an  annulment  is  usually  looked  upon  as  a  form  of 
dissolution  of  the  marriage,  similar  to  divorce."^  No  annul- 
ment decree  shall  therefore  be  retroactive.  The  reason  for 
separating  annulment  and  divorce  at  all,  considering  their 
similarity,  seems  to  be  partly  due  to  tradition  and  partly  a 
desire  to  conform  to  the  legislation  of  foreign  countries,  a 
consideration  of  some  importance  since  Sweden  is  one  of  the 
signatories  to  the  Hague  Convention  of   1902. 

The  law  recognizes  two  kinds  of  grounds  for  annulment, 
one  of  public  and  one  of  private  nature.  The  former  in- 
cludes marriages,  which  are  considered  against  public  policy 
and  which  therefore  must  be  dissolved,  when  the  state, 
through  its  public  prosecutors,  has  demanded  the  dissolu- 
tion. Grounds  of  private  nature  can  be  used  as  a  basis  for 
action  only  by  a  spouse. 

Marriage  entered  into,  in  spite  of  relationship  of  such  a 
nature  that  the  King  would  be  unable  to  give  permission  to 
the  union,  must  be  annulled.  Such  marirages  are ;  those  be- 
tween brother  and  sister,  mother  and  son,  father  and  daugh- 
ter, etc.  Bigamous  relationships  also  are  in  this  group. 
Bigamy,  however,  cannot  be  made  a  ground  for  action,  if 
the  earlier  marriage  has  been  dissolved. 

Among  the  private  grounds  for  annulment  we  find,  first 
of  all,  insanity  and  feeblemindedness  at  the  time  of  the  mar- 
riage. In  such  cases,  the  afflicted  person  cannot  be  bound  by 
his  promise  and,  even  though  he  should  recover  his  health, 
he  may  petition  for  annulment  within  six  months  after  his 
recovery,  if  he  does  not  wish  to  forfeit  his  right.  The  same 
privilege  is,  of  course,  extended  to  the  other  spouse,  if  he, 
at  the  time  of  the  ceremony,  was  ignorant  of  the  former's 
condition.  A  marriage  can  also  be  annulled  upon  the  peti- 
tion of  a  spouse,  if  he,  at  the  time  of  the  ceremony,  was 
temporarily  out  of  his  mind  or  in  a  condition  which  excludes 
the  ability  to  make  a  legal  contract,  such  as  intoxication,  etc. ; 
if  he,  by  mistake,  married  some  other  person  than  his  be- 

^Ibid,  pp.  319-20. 


7(i  Marriage  and  Divorce 

trothed  or  did  not  wish  to  marry  at  all ;  if  he.  at  the  time  of  the 
ceremony,  was  isrnorant  of  the  fact  that  his  betrothed  was  suf- 
faring  from  venereal  disease  in  an  infectious  stage,  leprosy, 
or  idiopathic  epilepsy,  or  was  incurably  disabled  to  perform 
the  marital  function;  if  he  was  deceived  into  the  marriage 
by  false  statements  or  fraudulent  concealment  of  the  identity 
of  his  betrothed  and  such  circumstances  of  his  earlier  life, 
w^hich,  if  known,  would  have  caused  the  dissolution  of  the 
betrothal ;  and  finally,  if  he  was  forced  into  the  marriage. 
The  right  to  start  action  on  these  grounds  is  forfeited  if  not 
exercised  within  a  certain  time  limit.  On  no  condition  can  a 
petition  be  entertained,  if  made  more  than  three  years  after 
the  marriage,  nor  can  it  be  made  on  the  ground  of  illness, 
if  the  illness  has  been  cured  and  if,  as  in  the  case  of  venereal 
disease,  the  petitioner  has  not  been  infected.  Neither  fail- 
ure to  reach  the  marriageable  age,  nor  lack  of  guardian's 
consent,  nor  failure  to  observe  the  waiting  period  in  the  case 
of  a  widow  or  divorcee,  nor  failure  to  get  the  King's  per- 
mission in  cases  of  dispensable  relationships,  constitutes  a 
ground  for  annulment. 

"Due  to  the  light  in  which  the  Commission  has  regarded 
marriages  that  are  annulled,  it  is  natural  that,  in  formulating 
the  rules  of  the  legal  efifects  of  the  annulment,  the  correspond- 
ing effects  of  divorce  should  be  frequently  referred  to.''^  The 
law  states  that,  in  the  main,  the  legal  effects  of  divorce  shall 
apply  to  annulments  as  well.  The  most  important  devia- 
tion from  this  principle  has  to  do  with  the  division  of  the 
property.  It  has  been  considered  unjust  to  give  a  spouse 
marital  property  rights  in  property,  which  the  other  owned 
at  the  time  of  the  marriage  or  which  he  has  later  acquired 
through  inheritance,  gift,  or  will.  When  the  division  of  the 
estate  is  made  after  the  annulment,  all  such  property  shall 
be  regarded  as  the  private  property  of  that  spouse.  The 
duty  of  support,  which  husband  and  wife  in  some  cases  owe 
each  other  after  a  divorce,  does  not  exist  in  annulment  cases. 
If  the  husband,  at  the  time  of  the  marriage,  acted  in  good 
faith,  but  not  the  wife,  he  can  also  have  the  court  prohibit 
her  using  his  name  in  the  future,  another  point  of  difference. 
A  similarity  exists  in  that  the  children  of  an  annulled  mar- 
riages are   legitimate.     The   rules   for  damages   in  case   of   an- 

^Ihid,  p.  321. 


Legislation  in  Sweden  77 

nulment  also  agree  in  principle  with  those  governing-  dam- 
ages in  divorce  proceedings  and  the  law  tries  to  regulate, 
in  an  equitable  manner,  the  disposal  of  the  family  property, 
if  a  marriage,  which  should  have  been  annulled,  is  dissolved 
by  death. 

Separation   and       ^"  drafting  the  part  of  the  law  dealing  with 
_,.  separation    and    divorce,    the    Commission 

probably  met  its  most  difificult  task.  The 
existing  legislation  was  by  no  means  adequate  or  in  the 
spirit  of  the  age.  Malicious  desertion,  as  a  cause  for  divorce, 
had  given  rise  to  the  so-called  "short  road"  divorces,  typified 
by  trips  to  Copenhagen,  which  were  available  only  to  those 
who  were  financially  fortunate  and  which  violated  the  spir- 
it, if  not  the  letter,  of  the  law.  The  "long  road"  had  to  be 
taken  by  the  poorer  classes  and  since  it  involved  public 
warnings  and  other  unpleasant  features,  it  gradually  came 
to  be  regarded  as  a  procedure  highly  insulting  to  the  peti- 
tioners. Again,  the  increasing  number  of  divorces  by  ad- 
ministrative order  made  the  problem  of  the  children  acute, 
since  arrangements  as  to  their  care  and  the  division  of  the 
property  were  impossible,  when  divorces  were  granted  at 
long  distance.  The  Commission  also  pointed  out  that  "what 
the  old  code  provides  as  to  the  loss  of  property  rights  [on 
the  part  of  the  guilty  spouse] ...  .is,  in  practice,  very  unfair 
because  of  the  application  the  rule  has  received,  particularly 
in  the  case  of  malicious  desertion.  Usually  it  is  not  applied 
at  all ;  husband  and  wife  make  a  private  agreement  in  re- 
gard to  the  disposal  of  the  property.  Since,  however,  the 
law  does  not  recognize  as  valid  an  agreement  between  hus- 
band and  wife  so  long  as  the  marriage  exists,  such  an  agree- 
ment must  be  clothed  in  other  forms,  which  again  neces- 
sitates the  circumvention  of  the  law.  In  many  instances, 
however,  it  has  been  shown  that  such  an  agreement  has  been 
invalid,  if  after  the  divorce  one  of  the  spouses  refused  to 
abide  by  it."*  The  old  code  also  failed  to  provide  for  the 
support  of  a  divorced  spouse,  except  in  case  of  insanity, 
which  meant  that  a  wife,  incapable  of  earning  her  own  liv- 
ing, might  find  herself  a  pauper,  when  her  husband  gained 
his   freedom,   a   condition,   which   often    led   the   court  to   re- 

*Ibid,  p.  385. 


78  Marriage  and  Divorce 

fuse  divorce  on  the  ground  of  "hatred  and  bitterness",  even 
though  the  ground  had  been  fully  established.^ 

The  family,  the  most  important  of  our  social  institutions, 
must  be  founded  on  a  deep  and  lasting  love  and  sympathy. 
While  this  spiritual  foundation  exists,  the  union  is  ethically 
and  morally  justified.  Should  the  foundation  crumble,  the 
marriage  is  no  longer  a  true  marriage  and  is,  so  far  as  society 
is  concerned,  much  better  dissolved.  "With  the  present  day 
ethical  conception  of  marriage  as  a  union,  which  should  be 

built  on  mutual  sympathy,  love  and  confidence it  would 

not  be  in  the  interest  of  public  welfare  to  try  to  maintain  a 
morally  unjustifiable  marriage,  neither  would  this  result  in 
any  gain  for  the  spouses  themselves  or  their  children."®  It 
is  this  conception,  expressed  in  the  first  paragraph  of  the 
chapter  on  divorce,  which  was  assailed  by  critics  in  and  out 
of  the  Riksdag.  To  them,  a  marriage  which  could  be  sev- 
ered by  mutual  agreement  of  "husband  and  wife,  who  on 
account  of  deep  and  constant  discord  are  unable  to  live  to- 
gether," was  "a  mere  contract  law"  and  an  "expression  of 
materialism."  To  the  Cathedral  Chapter  of  Uppsala,  the  law 
upheld  "an  unworthy  conception  of  marriage."'  On  the 
other  hand,  warm  supporters  saw  in  it  the  harbinger  of  a 
new  morality.  In  the  Second  Chamber,  the  Reverend  Hallen 
spoke  in  favor  of  the  law,  saying  that  "in  making  it  easier 
to  dissolve  marriages,  the  great  ethical  result  [of  the  law] 
is  a  reduction  in  the  number  of  the  marriages  that  are,  in  an 

ethical  sense,  immoral,  because if  personal  love  is  not 

the  binding  tie  in  the  union  of  husband  and  wife,  their  mar- 
riage becomes  a  lie,  a  condition,  which  our  existing  law  does 

not   remedy We    must,    indeed,    admit    that    instead    of 

being  retrogressive,  the  law  is  the  very  opposite,  since  it  is, 
in  the  realm  of  family  legislation,  trying  to  formulate  those 
principles  of  justice  by  which  children  are  protected  and 
those  marriages  broken,  which  are  actually  nothing  but 
legalized   falsehoods."^ 

Mutual  agreement,   then,   makes  it  possible   for  husband 
and  wife  to  secure  a  divorce,  if  they,  "on  account  of  deep  and 

''Ibid. 

^Opinion  of  Lord  Justice  Thomasson  and  Lord  Justice  Baron  Leijon- 
hufvud.     See  Kungl.  Maj:ts  Proposition  nr.  i8,  1915,  p.  80. 
''Logutskottets  utldtande,  nr.  32,  1915,  p.  47. 
^Andra  Kammarens  Protokoll,  nr.  71,  1915,  pp.  32-34. 


Legislation  in  Sweden  79 

constant  discord,"  have  found  their  marriage  to  be  a  failure. 
If  such  an  agreement  exists,  the  court  has  no  right  to  inquire 
into  the  nature  of  the  "discord",  which  brought  the  mar- 
riage to  such  an  unhappy  end.  "No  one  knows  the  conditions 
better  than  the  spouses  themselves.  If  they  have  found  the 
marriage  unendurable,  there  is  a  strong  presumption  that 
such  a  condition  really  exists. "**  In  order,  however,  to  guard 
against  hasty  and  maybe  unfounded  decisions  and  "to  secure 
a  guarantee  that  a  divorce  is  not  applied  for  until  the  hus- 
band and  wife  have,  upon  serious  and  mature  thought,  found 
it  impossible  to  continue  their  marriage,"^"  an  absolute  divorce 
is  not  given  at  once,  the  law  establishing  a  waiting  period  of 
one  year,  or  as  the  law  terms  it,  a  separation,  which  is  very 
much  akin  to  the  old  form  of  separation  from  bed  and  board. 
To  maintain  the  marital  relationships  during  the  waiting 
period  would  make  it  difficult  to  reach  a  dispassionate  and 
fair  decision  and  the  law,  consequently,  asks  the  husband 
and  wife  to  live  apart.  One  of  them  must  leave  home  and  the 
court  usually  permits  the  one  to  stay  who  has  been  less  culp- 
ible  or  whose  absence  would  mean  the  greater  loss  to  the 
children.  If  it  is  necessary  for  the  protection  of  the  rights 
of  those  involved,  the  court  may  also,  upon  pain  of  imprison- 
ment or  a  fine,  forbid  any  communication  between  the  two 
for  the  period  mentioned.  The  real  purpose  of  the  waiting 
period,  which  exists  only  for  marriages,  which  are  in  the 
danger  of  dissolution  due  to  internal  dissension  and  for  no 
other  reason,  is  to  make  the  conditions  for  a  reconciliation  as 
favorable  as  possible.  Both  husband  and  wife  must  during  this 
period  make  earnest  attempts  to  adjust  their  difficulties. 
They  are  in  duty  bound  to  ask  their  pastor  or  some  other  per- 
son, appointed  by  the  court  on  their  petition  or  appointed 
by  the  community  as  mediator  in  all  separation  cases,  to  help 
them  in  this  matter.  Should,  however,  all  earnest  attempts 
fail  and  no  reconciliation  be  possible,  the  court  will,  at  the 
expiration  of  the  year,  make  the  separation  decree  absolute 
upon  the  petition  of  either  spouse.  There  is  no  publicity. 
Even  the  court  proceedings  will  be  held  behind  closed  doors, 
should  one  or  both  the  petitioners  ask  it. 

Separation   can   also   be   won   by   either   spouse,   upon    his 

^Lagheredningens  forslag,  etc.  I,  p.  390. 
^^Ibid.,  p.  391. 


80  Marriage  and  Divorce 

petition,  if  the  other  is  guilty  of  flagrant  neglect  in  his  duty 
to  support  the  family,  if  he  misuses  intoxicants  or  leads  a 
vicious  life.  Mediation  must  be  tried  in  all  such  cases  as 
well.  Should  the  court  find  that  the  petitioner's  private  life 
and  conduct  is  reproachable,  it  might  refuse  to  grant  the 
petition  in  order  to  inquire  further  into  the  case.  The  find- 
ings of  the  inquiry  might  lead  the  court  to  refuse  the  peti- 
tion entirely,  unless  the  marriage  is  unjustifiable  from  an 
ethical  point  of  view  and  neither  children  nor  wife  would 
gain  from  its  continuance. 

The  law  recognizes  that  marriages,  which  are  so  only  in 
name,  because  husband  and  wife  have  lived  apart  for  three 
years  or  more  due  to  "deep  and  constant  discord",  should 
be  dissolved  if  either  spouse  petitions  for  it.  The  same  is 
true  when  one  spouse  has,  of  his  free  will  and  for  no  valid 
reason,  withdrawn  from  the  marriage  for  a  period  of  two  or 
more  years;  the  other  has  then  sufftcient  grounds  for  divorce. 
An  absence  of  three  years  upon  the  part  of  one  spouse  with- 
out any  information  of  his  whereabouts,  gives  the  other  a 
right  to  divorce.  If  a  person  remarries,  in  spite  of  the  fact 
that  the  former  marriage  has  not  been  dissolved,  the  spouse 
of  this  earlier  marriage  has  a  ground  for  divorce.  The  law 
retains  adultery  as  a  ground  for  action  and  adds  to  it  all 
other  punishable  fornication. 

If  a  spouse  has  exposed  the  other  to  infection  from  ven- 
ereal disease  unknown  to  the  latter,  a  ground  for  divorce  ex- 
ists, should  the  latter  wish  to  avail  himself  of  it.  Assault, 
plots  against  the  life  of  a  spouse,  a  three-year  sentence  to 
hard  labor,  or  a  shorter  sentence  at  the  discretion  of  the 
court;  misuse  of  intoxicants  in  special  cases;  and  incurable 
insanity,  which  has  lasted  continuously  for  a  period  of  three 
years,  are  all  grounds  for  divorce.  The  law  no  longer  pro- 
vides for  divorce  by  Royal  dispensation ;  all  cases  must  be 
handled  by  the  court.  The  petition  must  be  made  within  a 
stipulated  time  to  be  effective.  In  cases  where  the  guilty 
spouse  remarries,  commits  adultery,  or  other  punishable 
fornication,  exposes  the  other  to  venereal  disease,  plots 
against  his  life,  or  assaults  him,  or  is  sent  to  prison  for  some 
serious  ofifense,  the  petition  must  be  made  within  six  months 
from  the  time  when  the  cause  for  action  arose,  and  not  later 
than  three  years  from  that  time,  unless  the  ground  be  that 


Legislation  in  Sivcdcn  81 

of  bigamy,  or  exposure  to  venereal  disease,  when  no  time 
limit  is  set. 

The  divorce  has  far  reaching  legal  consequences.  It  af- 
fects the  property  of  the  family,  may  force  one  of  the  parties 
to  support  the  other,  and  makes  necessary  a  rearrangement 
of  the  provisions  begun  for  the  care  of  the  children.  When 
separation  has  been  decreed,  a  division  of  the  property  shall 
take  place,  with  the  usual  legal  effect.  Any  property  acquired 
after  the  division  shall  be  the  private  property  of  the  one  who 
acquired  it.  Until  the  division  takes  place  each  spouse  may 
continue  to  control  his  marital  property,  but  when  the  time 
for  the  division  comes  he  is  duty  bound  to  give  an  account- 
ing of  his  administration  and  of  all  the  income  which  has 
accrued  from  such  property.  Should  either  spouse  have 
reason  to  fear  that  the  marital  property  (in  all  of  which  he  has 
half  interest)  might  sufit'er  at  the  hands  of  the  other,  he 
may  ask  the  court  to  withdraw  his  share  from  the  other's 
marital  property  and  place  it  under  a  special  administrator 
until  the  division  is  made.  This  the  court  can  do  unless  the 
other  places  security  for  the  property,  the  withdrawal  of 
which  has  been  asked,  thereby  guaranteeing  it  against  loss. 
Of  course,  if  a  prenuptial  agreement  as  to  the  disposal  of  the 
property  already  exists  between  husband  and  wife  or  if 
separation  of  property  has  already  been  decreed  before  the 
divorce,  no  such  measures  are  in  order.  Before  a  division  is 
made,  a  careful  inventory  of  all  the  property  must  be  made 
and  a  copy  of  it  deposited  with  the  court. 

In  some  cases,  the  injured  spouse  may  claim  damages. 
If,  for  instance,  a  divorce  is  granted  on  the  ground  of  non- 
support,  drunkenness,  or  vicious  living,  and  the  petitioner's 
marital  property  is  slight,  he  may,  at  the  time  of  the  divi- 
sion of  the  estate,  claim  necessary  household  goods,  his  tools 
and  other  chattels  needed  in  the  pursuit  of  his  trade.  This 
he  can  do,  even  though  the  other's  share  might  suffer  a  de- 
pletion by  the  removal.  If  a  spouse  is  granted  a  divorce  on 
some  ground  which  involves  a  serious  wrong  to  him,  or  if 
separation  has  been  granted  him  on  the  ground  that  the  other 
seriously  failed  in  his  duties  toward  him,  the  petitioner  is 
also  entitled  to  damages,  which  vary  with  the  financial  and 
other  circumstances  of  the  family. 

Even  though  separation  or  divorce  has  been  decreed,  the 
duty  of  a  spouse  to  support  the  other  has  not  been  removed. 


82  Marriage  and  Divorce 

The  old  law  recognized  this  duty  only  in  one  case,  that  of 
insanity.  The  new  law  extends  this  duty  to  cover  all  grounds, 
providing,  of  course,  for  some  exceptions  in  individual  cases. 
If  separation  has  been  won,  a  spouse  shall,  nevertheless,  con- 
tribute to  the  other's  support,  in  accordance  with  the  eco- 
nomic and  social  status  of  the  family  u}iless  the  latter  was  the 
cause  of  the  separation,  in  which  case  the  court  will  take  the 
matter  under  special  consideration  and  decide  on  the  merits 
of  the  case.  The  same  holds  true  in  case  of  divorce.  After 
the  court  has  settled  the  amount,  which  should  be  contribut- 
ed, it  still  has  the  right  to  make  changes  in  the  amount  at 
all  times  should  circumstances  make  it  advisable.  It  cannot 
make  such  changes  if  the  alimony  has  been  paid  in  a  lump 
sum,  once  for  all.  The  law  recognizes  as  valid,  agreements 
dealing  with  the  disposal  of  the  property,  damages,  and  al- 
imony, entered  into  between  husband  and  wife  in  view  of 
the  impending  divorce  or  separation.  If  later  conditions 
cause  these  agreements  to  become  unjust  or  prejudicial  to 
either  spouse,  the  court  may  upon  his  petition  make  an  ad- 
justment. 

What  happens  to  the  children?  The  law  instructs  the 
court  to  arrange  for  their  care,  guided  by  what  is  considered 
best  for  them.  There  is  no  set  rule  made  for  their  disposal. 
If  husband  and  wife  have  agreed  between  themselves  what 
should  be  done  with  them,  the  court  shall  abide  by  this 
agreement  unless  the  children's  welfare  would  be  endangered 
by  the  court's  passivity.  The  law  holds  that  the  question  of 
guilt  should  never  enter  into  the  consideration  unless  both 
parents  are  equally  able  to  care  for  the  children,  in  which 
case  they  should  be  awarded  to  the  one  who  did  not  cause 
the  disruption  of  the  family  in  preference  to  the  other  par- 
ent. The  latter  would  even  then  be  in  duty  bound  to  con- 
tribute to  the  support  of  the  children.  The  law  places  no 
obstacles  in  his  way  of  visiting  them,  unless  the  visits  would 
be  detrimental  to  their  welfare.  Whichever  parent  is  award- 
ed the  children  becomes  their  guardian,  a  right  which  during 
the  marriage  belongs  to  the  father  and  mother  in  common. 

In  short,  the  new  law  has  on  the  whole  materially  facili- 
tated the  gaining  of  divorce.  By  making  separation  by  mu- 
tual consent  possible,  the  rich  and  the  poor  are  given  the 
same  opportunities  for  ending  unhappy  marriages.  In  fact, 
by   requiring   a   separation    of   one   year    in   all    cases,   where 


Legislation  in  Sweden  83 

"deep  and  constant  discord"  has  disrupted  the  family,  the 
easy  divorce  on  the  technical  ground  of  maUcious  desertion 
and  the  actual  ground  of  mutual  consent,  has  been  abolished. 
The  new  law  extends  a  greater  protection  to  the  weaker 
members  of  the  family,  the  wife  and  the  children,  and  has, 
by  its  direct  and  implied  emphasis  on  the  spiritual  signifi- 
cance of  marriage,  earned  a  high  place  in  the  annals  of  modern 
family  legislation.  It  is  true  that  the  law  leans  toward  the 
conception  of  marriage  as  an  institution,  which  has  devel- 
oped out  of  human  needs  and  which  is  not  based  on  divine 
sanction.  The  ecclesiastical  points  of  view  have  received  no 
particular  consideration,  a  fact  which  has  been  responsible 
for  most  of  the  criticism  from  that  quarter.  Many  members 
of  the  clergy,  however,  saw  beyond  their  creed  in  the  dis- 
cussion of  the  law.  In  Svensk  Tidskrift,  Rev.  S.  A.  Fries 
wrote  in  1913,  shortly  after  the  appearance  of  the  Commis- 
sion's report,  'T  can  not  see  that  the  work  of  the  Church, 
in  an  evangelical  sense,  has  been,  in  the  least,  curtailed  by  the 
proposed  law,  which,  time  and  again,  characterizes  marriage 

as  a  moral  institution  and  not  merely  a  legal  one When 

a  balance  is  made  of  public  opinion  of  the  ethical  position 
of  the  proposed  law,  I  believe  that  a  fair  estimate  of  the  law, 
from  ecclesiastical  quarters,  will  find  in  it  an  ethical  point  of 
view,  sufficiently  strong  to  satisfy  an  evangelical  conception 
of  the  moral  meaning  of  marriage. "^^  To  make  divorce  easy  is 
not  immoral,  but  to  permit  people  to  marry,  when  they  are 
physically  or  mentally  unfit  or  unprepared  to  enter  a  relation- 
ship which  is  of  greater  importance  than  any  other  to  the  wel- 
fare of  the  group — that  is  immoral.  A  law  which  forces  people 
to  live  in  a  marriage  although  the  foundation  of  the  marriage 
has  crumbled,  no  longer  "serves  public  welfare,  and  should  be 
speedily  abolished."  Professor  Edward  Westermarck,  the 
greatest  living  student  of  the  family  as  a  social  institution, 
says,  "It  is  a  widespread  idea  that  divorce  is  the  enemy  of 
marriage  and,  if  made  too  easy,  might  prove  destructive  to 
the  very  institution  of  the  family.  This  view  I  cannot  share. 
I  look  upon  divorce  as  the  necessary  remedy  for  a  misfortune 
and  as  a  means  of  preserving  the  dignity  of  marriage  by  put- 
ting an  end  to  unions,  which  are  a  disgrace  to  its  name.    The 


^iQuoted  by  Count  Hamilton  in  a  speech  in  the  Senate.     See  Forsta 
Kammarens  Protokoll,  nr.  63,  1915,  p.  43. 


84  Marriage  and  Divorce 

existence  of  marriage  does  not  depend  on  laws.  If mar- 
riage is  not  an  artificial  creation  but  an  institution  based  on 
deep-rooted  sentiments,  conjugal  and  parental,  it  will  last 
as  long  as  these  sentiments  last.  And  should  they  ever 
cease  to  exist,  no  laws  in  the  world  could  save  marriage  from 
destruction. "^- 

rr^j  na  t  -c  What  effect  has  the  marriage  and  divorce 
1  he  hjjects  of  ..,,..-_*'. 

law  had  upon  family  life:     It  is,  as  vet,  too 

'^      ^^"  early   to   make   any   good   observations.      It 

is  apparent,  however,  that  the  expectation  of  a  higher  di- 
vorce rate  as  been  fulfilled.  Due  to  obvious  causes,  such  as 
the  institution  of  the  one  year  waiting  period,  etc.,  there 
was  a  decrease  in  the  number  of  divorces  during  1916,  the 
year  the  law  went  into  effect.  In  1917  there  was  a  decided 
increase.  While  the  number  of  divorces  granted  in  191 5  was 
847  and  in  1916,  /"y2,  it  jumped  to  1,040  in  1917  and  1,045  the 
following  year.  In  1919,  1,170  divorces  were  decreed  and  in 
1920  the  climax  was  reached,  the  number  being  1,310.  In 
percentages  of  the  total  number  of  marriages,  the  rate  was 
for  these  years:  2.55,  2.20,  2.93,  2.71,  2.90,  and  3.06.  It  re- 
mained well  below  one  percent  until  the  decade  1890-1900, 
when  it  reached  1.15,  from  which  time  a  steady  rise  has 
been  recorded. 

During  the  entire  period  1917-20,  there  were  4.563  divorces 
granted.  Out  of  these,  2,195,  or  48.1  percent,  were  decreed 
after  one  year's  separation  on  the  ground  of  deep  and  con- 
stant discord  or  on  the  ground  of  mutual  consent;  1,134,  or 
24.8  percent,  were  granted  on  the  ground  of  actual  separa- 
tion for  a  period  of  three  years  due  to  dissension  in  the  fam- 
ily ;  360,  or  7.8  percent,  on  the  ground  that  one  spouse  had 
wilfully  withdrawn  from  the  relationship  for  a  period  of  two 
years ;  279.  or  6  percent,  on  grounds,  provided  by  the  old 
law;  217,  or  4.7  percent,  on  the  grounds  of  bigamy  or  adult- 
ery ;  160,  or  3.5  percent,  on  the  ground  of  a  three-year  dis- 
appearance; 131,  or  2.8  percent,  on  the  ground  of  insanity. 
The  rest,  87  in  number,  were  granted  on  the  grounds  of  a 
penitentiary  sentence,  abuse  of  intoxicants,  or  venereal  dis- 
eases, plots  against  the  other's  life,  or  physical  maltreat- 
ment,  the   last  mentioned   group  figuring  in   only   ten   cases. 

^^Westermarck,  Edward,  The  History  of  Human  Marriage,  vol.  3,  pp. 
277-7^. 


Legislation  in  Sweden  85 

In  over  eighty  percent  of  the  divorces,  mutual  consent,  or 
dissension  in  the  family,  which  had  resulted  in  the  actual 
dissolution  of  family  life,  were  the  grounds  of  complaint.^^ 
It  may  be  instructive  to  compare  these  figures  with  those  for 
the  decade  1901-1910,  when  4,735  divorces  were  granted. 
Wilful  desertion  formed  the  ground  for  complaint  in  2,224, 
or  47  percent  of  the  cases.  In  1,722  cases,  36.3  percent  of  the 
total,  the  divorce  was  decreed  on  the  grounds  of  wasteful- 
ness, drunkenness,  violent  temper,  or  difiference  in  opinions 
and  temperament;  in  481,  or  10  percent,  on  the  grounds  of 
adultery,  in  155,  or  3.3  percent,  on  the  ground  of  crime;  in 
132,  or  2.8  percent,  on  the  ground  of  insanity.  Of  the  re- 
maining 21  divorces,  thirteen  were  granted  on  the  ground 
of  incurable  diseases,  six  because  the  wife,  before  the  mar- 
riage, had  had  sex  relations  with  some  one  else  than  the  hus- 
band, one  on  the  ground  of  life  imprisonment,  and  one  be- 
cause of  plots  against  the  petitioner's  life.^* 

^^Statistisk  Arsbok  for  Sverige,  1920,  Tables  34-35,  in  page  proof. 
^*Lagberedningens  forslag,  etc.,  I,  p.  611,  Bilaga  6. 


CHAPTER  SIX 


THE  LEGAL  STATUS  OF  THE  WIFE 

The  second  part  of  the  new  law,  deaHng  with  the  eco- 
nomic relationships  in  the  family,  was  not  ready  for  presenta- 
tion to  the  King  until  August  31,  1918,  It  was  prepared  by 
the  Commission,  cooperating  with  the  Norwegian  and  Dan- 
ish Commissions,  and  was  characterized  by  the  same  broad 
outlook,  which  featured  the  law  of  191 5.  To  represent  the 
Swedish  women,  Fru  Emilia  Broome,  a  leader  in  the  work 
for  the  greater  independence  of  woman,  was  appointed  to 
the  Commission,  which  otherwise  consisted  of  Messrs.  Eke- 
berg,  Westring,  Tiselius.  and  Stenbeck.  Several  communica- 
tions from  the  Riksdag  to  the  government  and  many  appeals 
from  various  women's  organizations  throughout  the  country 
formed  a  basis  for  the  work,  because  they  expressed  not  alone 
a  wish  for  improvement  but  specified  the  changes  desired.  In 
the  most  important  points,  the  laws  of  the  three  countries 
were  given  a  similar  structure.  The  emphasis  of  the  Nor- 
wegian law,  however,  was  upon  the  economic  effects  of  mar- 
riage, while  the  Swedish  and  the  Danish  law  included  other 
effects  as  well.  Some  minor  changes  were  necessary  in  the 
law  of  1915,  and  after  these  changes  had  been  suggested, 
the  entire  law  of  1915  was  included  in  a  Royal  Proposition  to 
the  Riksdag  of  1920,  the  main  feature  of  which  was  the  law 
proposed  by  the  Commission  in  its  report  of  1918.  The  law 
was  adopted  without  much  change,  was  promulgated  June 
II,  1920,  and  went  into  effect  January  i,  1921.  Laws  em- 
bodying changes  in  the  Inheritance  Law,  the  Bankruptcy 
Law,  etc.,  and  a  Law  regarding  Children  in  the  Marriage 
were  passed  at  the  same  time. 

It  was  a  great  victory  for  all  those  who  had  for  years 
hoped  and  worked  for  the  removal  of  some  of  the  antiquities 
in  the  old  code.  The  dynamic  ideals  of  a  progressive  age  had 
gradually  caused  the  disintegration  of  the  old  philosophy  of 
marriage,  according  to  which  the  wife  was  to  be  silent  in  the 
public  places  and  obey  her  husband  at  home.     The  women 


Legislation  in  Sweden  87 

of  Sweden,  or  rather  the  representatives  of  the  class-con- 
scious women  of  Sweden,  the  Fredrika  Bremer  Society,  the 
National  Association  of  Swedish  Women,  the  National  As- 
sociation for  the  Woman's  Franchise,  and  the  Executive 
Committee  of  the  Social  Democratic  Women,  in  1916  formu- 
lated the  demands  of  the  modern  woman,  whose  desires  were: 
"i.  The  guardianship  by  the  man  should  be  completely 
abolished  so  that  the  married  woman  can  get  full  legal  power 
to  act. 

2.  The  changing  conditions  of  life  demand  that  the  law 
should  formulate  and  propose  diverse  systems  of  economic 
rights,  based  on  private  or  joint  property  rights,  and  give 
husband  and  wife  power  to  choose  between  these  systems 
before  the  marriage  and  change  from  one  to  the  other  after 
the  marriage,  should  they  desire  to  do  so. 

Where  community  of  property  exists,  the  economic  in- 
dependence of  the  wife  must  be  secured The  chief  prin- 
ciple should  place  husband  and  wife  on  the  basis  of  equal- 
ity in  the  matter  of  administrative  control,  whether  this  be 
jointly  or  separately  exercised.  The  law  should  therefore 
formulate  several   systems   of  joint  ownership   of  property. 

According  to  their  finances,  both  husband  and  wife  should 
be  duty  bound  to  contribute  to  the  maintenance  of  the  fam- 
ily, the  security  of  the  home,  and  the  education  of  the  chil- 
dren, as  well  as  to  each  other's  personal  expenses.  If  the 
wife  has  no  separate  income  from  her  own  labor  or  her  pro- 
perty, her  duty  as  contributor  is  filled  by  her  labor  in  the 
home.  Legal  and  efifective  means  of  securing  the  contribu- 
tions mentioned  should  be  provided. 

3.  The  parental  authority  should  be  shared  by  father  and 
mother  equally.  In  case  of  dissension,  the  welfare  of  the 
children  should  receive  the  first  consideration. 

4.  Disagreements  between  husband  and  wife  should  be 
referred  to  some  authority,  which  should  consist  of  both  men 
and  women. 

5.  A  woman,  who  marries  an  alien,  should  retain  her  own 
citizenship  as  long  as  she  lives  in  her  native  country."^ 

Almost  all  the  demands  made  in  the  above  communica- 
tion were  put  into  legal  form  by  the  Commission.  In  fact, 
the  law  gave  in  some  instances  more  than  was  asked.    It  was 

^Lagberedningens  forslag  etc.,  IV,  p.  155. 


88  Marriage  and  Divorce 

only  the  demand  for  citizenship,  which  was  left  unconsider- 
ed, not  because  the  Commission  was  not  favorably  inclined, 
but  because  it  did  not  consider  such  legislation  within  its 
scope.  It  is  a  far  cry,  indeed,  from  the  marriage  ritual  of  iSii, 
which,  only  slightly  changed  since  the  17th  century,  read  in 
part.  "You  shall  carefully  consider  that  God  Himself  insti- 
tuted marriage  and  made  the  man  the  woman's  protector  that 
he  should  be  her  protector  and  rule  over  her  in  the  ear  of  God 

and  to  her  benefit And  as  the  man  is  by  nature  stronger 

and  blessed  with  greater  intelligence  than  the  woman,  he  shall 
use  these  gifts  for  her  protection  and  not  for  her  subjection. .  . 
The  woman  shall  also  obey  the  man,  love  him,  and  look  up 
to  him  as  her  head,  remembering  that  she  was  created  to 
aid  him.  She  shall  not  attempt  to  rule  over  him,  because  the 
woman  was  created  for  the  man  and  not  the  man  for  the 
woman. "- 

The  dependence  of  the  married  woman  had  probably  been 
most  keenly  felt,  because  the  law  made  the  husband  the  mas- 
ter in  the  home.  It  is  true  that  legislation  during  the  last 
twenty  years  had  attempted  to  extend  the  wife's  powers. 
Favorable  tax  legislation  made  it  possible  for  the  married 
woman  to  take  part  in  the  political  life  of  the  local  commun- 
ity, either  as  officeholder  or  voter,  but  her  private  rights  as 
member  of  the  family,  were  not  enlarged.  Both  the  Com- 
mission and  numerous  speakers  on  the  floor  of  the  Riksdag 
expressed  the  belief  that  the  falling  marriage  rate  among 
certain  classes  of  people  was  to  a  great  extent  due  to  the 
dependent  position,  in  which  the  husband's  guardianship 
placed  the  wife,  in  spite  of  the  fact  that  the  dignity  of  woman- 
hood was  rapidly  growing  and  gaining  for  it  privileges, 
which  public  sentiment  granted  but  the  law  withheld.  The 
Commission  therefore  felt  its  most  important  function  to  be 
the  codification  of  the  sentiments  and  practices,  which  had 
gradually  developed  and  been  given  social  sanction  of  extra- 
legal nature. 

The  whole  law  regarding  the  economic  and  personal  rela- 
tions between  husband  and  wife  is  based  on  the  conception  of 
marriage  as  "a  union  between  two  free  individuals  with  mu- 
tual duties  to  respect  each  other's  needs  and  desires."^     The 

^Quoted  by  Senator  Larsson  in  a  speech  in  the  Senate.  See  Forsta 
Kammarcns  Protokoll,  nr.  34,  1920,  p.  64. 

^Lagberedningens  forslag  etc.,  IV,  p.  160. 


Legislation  in  Sweden  89 

aim  of  the  law  is  "to  create  complete  legal  equality  of  hus- 
band and  wife  in  the  marriage."  This  aim  has  been  reached 
by  abolishing  the  old  institution  of  guardianship,  by  distribut- 
ing the  powers  of  control,  so  far  as  property  is  concerned, 
and  by  securing  the  wife's  economic  position,  giving  her  an 
equal  voice  with  her  husband  in  the  management  of  the 
household  and  the  bringing  up  of  her  children. 

"Husband  and  wife  owe  each  other  faith  and  assistance 
and  shall  jointly  work  for  the  welfare  of  the  family,"  says 
the  first  paragraph  of  the  fifth  chapter.  This  means  that  from 
now  on  the  wife  has  the  same  independence  in  her  home  and 
her  relationship  with  her  husband  and  children,  that  the  hus- 
band has  always  had.  The  result  is  that  she  must  accept  the 
same  duties  of  supporting  the  family  that  her  husband  has. 
The  law  recognizes,  however,  that  her  work  in  the  home  con- 
stitutes a  fulfilment  of  that  duty  and  that  housework  is  as 
dignified,  as  valuable,  and  as  necessary  as  the  husband's 
work  outside  the  home.  But — the  housework  does  not  give 
the  wife  any  cash  returns.  It  earns  her,  however,  the  right 
to  have  sufficient  funds  placed  at  her  command  to  meet  all 
the  needs  of  the  household  and  those  of  her  own.  Money 
given  her  for  this  purpose  is  her  own  private  property  and 
really  represents  her  contribution  to  the  family  support. 
Should  her  husband  fail  to  supply  her  with  money,  i.  e.  should 
he  stop  supporting  the  family,  she  can  ask  the  court  to  re- 
mind him  of  his  duties.  It  is  no  longer  necessary  for  her  to 
leave  her  husband  in  order  to  make  him  support  her,  although 
that  was  the  situation  under  the  old  law,  when  a  wife,  who 
retained  her  affection  for  her  husband  and  did  not  wish  to 
leave  him,  had  to  apply  for  poor  relief,  if  he  failed  in  his 
duties  to  supply  the  family  with  the  necessities  of  life.  In 
order  to  be  able  to  make  perfectly  fair  estimates  of  the  re- 
spective duties  of  support,  incumbent  upon  both  husband 
and  wife,  they  are  by  law  required  to  inform  each  other  in 
full  of  their  financial  condition  and  resources.  The  old  law 
gave  the  wife  no  right  to  make  a  contract  with  a  third  per- 
son for  the  supply  of  necessities  for  the  family,  unless  she 
had  her  husband's  express  permission.  The  new  law  gives 
her  the  right  to  enter  into  any  contract  for  the  purpose  of 
meeting  the  requirements  of  the  household  or  the  education 
of  the  children  and  in  doing  so  the  contract  shall  be  con- 
sidered as  binding  her  husband  as  well.     Of  course,  she  can- 


90  Marriage  and  Divorce 

not  expect  her  husband  to  become  jointly  liable  with  her  for 
a  debt,  which  was  incurred  to  meet  an  expense,  which  does 
not  harmonize  with  the  social  and  economic  status  of  the 
family. 

The  duty  of  support,  which  ends  in  case  the  marriage  is 
annulled,  remains  even  though  the  family  is  broken  up  by 
separation  or  divorce.  It  is  mutual,  but  will  naturally  fall 
upon  the  husband  alone  in  most  cases.  The  duty,  however, 
becomes  nullified  in  case  the  needy  spouse  is  the  one  who 
caused  the  rupture.  Alimony  can  be  paid  either  in  a  lump 
sum  or  in  installments.  If  the  latter,  the  court  may  at  any 
time  and  upon  the  petition  of  either  spouse  make  adjust- 
ments in  the  amount.  The  installments  are  automatically 
revoked  by  the  marriage  of  the  person  receiving  them. 

The  law  makes  no  attempt  to  restrict  a  wife's  personal 
activities  in  or  outside  the  home.  She  is  urged  to  "work 
jointly  with  her  husband  for  the  family's  welfare",  but  no 
longer  is  it  necessary  for  her  to  confine  her  work  to  the 
household.  Her  husband  could,  according  to  previous  legis- 
lation, demand  her  services,  a  situation  which  no  longer  ex- 
ists. If  she  desires  to  dispose  of  her  labor  power  to  a  third 
person  and  makes  a  contract  with  him  to  that  effect,  this 
contract  is  perfectly  legal  and  valid.  The  law  recognizes 
that  conditions  might  arise  when  the  welfare  of  the  family 
demands  that  she  accept  outside  employment  and  her  power 
to  do  so  should  no  longer  depend  on  the  consent  of  some- 
body else,  even  though  that  somebody  may  happen  to  be  her 
husband.  "She  must  have  the  right  to  dispose  of  her  labor 
power  just  as  her  husband  does  of  his,"  writes  the  Law  Com- 
mission.* If  she  feels  that  her  happiness  and  that  of  the 
family  is  gained  by  placing  servants  in  the  home  and  accept- 
ing employment  outside  the  home,  the  law  supports  her 
choice.  It  is  no  longer  necessary  for  her  to  ask  her  hus- 
band's consent  to  engage  in  business. 

The  old  code  gave  to  the  father  the  guardianship  over 
the  children.  He  decided  the  extent  of  their  education,  and 
chose  their  religion  and  their  life's  work.  It  is  natural  that 
a  mother  would  seriously  object  to  a  stipulation  in  the  law, 
which  gave  her  no  legal  hold  on  her  children.  "The  child," 
says  the  Commission,  "is  no  closer  to  the  father  than  to  the 
mother  and  the  father  has,  as  a  rule,  no  greater  opportunity 

*Ibid. 


Legislation  in  Siveden 

than  the  mother  of  testing  what  is  best  for  the  child.    Usu- 
a.;t'he%hild  stands  in  much  closer  -timacy  to  the  mother 
and  particularly  during  the  early  years  of  a  ch.ld  s  h  e  .s  the 
mother  more  fit  to  decide  the  questions  affectmg  it       Ihe 
TaAer  s  Zm  to  settle  all  problems  alone  becomes  part.cular- 
;  offer  Jive  if  he  uses  ,t  to  place  the  child  outs.de  the  home 
for  its  education  and  thus  deprives  .ts  mother  of  '«   ~'^„ 
oanionship   and   the   chance   of   close    supervision    over   it. 
The  La  V   regarding  Children  in  the  Marriage,  which  went 
into  effect  at  the  same  time  as  the  new  marriage  and  divorce 
C  states  that  "a  child  is  to  be  under  the  eare,of  i  s  par 
ents  until  the  age  of  twenty-one  or  until  ^^"g^^^J^^'^^l 
uses  the  word  father  or  mother  so  long  as  it  discusses  an  un 
broken  family.     Should  either  parent  die.  the  othe.  becomes 
tl  e  sole  guar'dian  of  the  children.    Of  course,  there  might  b 
d  sagreements  as  to  what  should  or  should  not  be  done  for 
a  child's  education,  etc..  but  the  law  hopes  that  such  differ- 
ences be  settled  without  the  aid  of  any  outside  agency.     As 
alast  resort,  a  court  decision  may  be  asked,  the  cotirt  simply 
determining' which  parent  should  be  given  the  dee.ding  voic 
in  the  matter  and  in  no  way  attempting  to  solve  the  particular 
problem  involved.     In   its   action,   the  court   must   again  b 
guided  by  what  it  believes  to  be   the   true  welfare  of   the 

''"with  the  disappearance  of  the  husband's  guardianship, 
he  also  loses  the  right  to  be  his  wife's  representative  at  the 
bar  of  justice  or  elsewhere.  Her  right  to  speak  for  herself 
has  now  become  general. 

As  to  property  ownership,  the  old  code  provisions  we  e 
lacking  in  unity  and  logic.     "The  legislation  has  Ptev.ously 
rested°on  the  principle  of  community  of  property,  with  the 
exception  of  inherited  property  or  previously  acquired     ea 
property,  and  the  placing  of  all  property  under  the  cont  ol 
'o    the  husband.     So  long  as  this  principle  was  in  force  -th- 
out   exceptions    the    rules   were    simple    enough       W  hen    at 
tempts  were  later  made,  at  different  times  and  by   various 
m  ans,  to  strengthen  the  position  of  the  ^fe  without  enti- 
Iv   changing  the    systems   of    property   ownership,    it   was    pos 
sible  only  by  departing,  in  special  instances    from  the  prin- 
cinle      As   a  result   the   existing   law   includes   varying   and 


'•'Ibid,  p.  165- 

^Svensk  Forfattningssamling,  nr.  407,  1920. 


92 


Marriage  and  Divorce 


mutual  y  contradictory  rules.  This  lack  of  unity  and  lo^ic 
in  the  law  makes  it  highly  complicated  and  difficult  to  ap- 
ply. According  to  the  new  law,  all  property  shall  be  under 
the  control  of  the  owner,  be  it  husband  or  wife  At  the 
same  time  the  old  common  or  joint  property  system  has  been 

r.    '7.1.'".^         c^f  ^°'"'-     "^^  property,  which  a   spouse 
has  at  the  time  of  the  marriage  or  acquires  later,  with  cer- 
tam  exceptions,  is  called  his  marital  property.     He  controls 
this   property   and   is,    on    certain    conditions,    allowed   to    do 
with  It  what  he  pleases.    The  other  spouse  has  a  latent  right 
to  one  half  of  it   a  right  which  never  appears  on  the  surface 
until  the  estate  is  divided  on  account  of  separation  of  pro- 
perty separation,  divorce,  or  death.    This  latent  right  imposes 
a  duty  on  the  owner  of  the  property  to  administer  it  so  ^hl 
It  IS  not  unduly  decreased,  a  condition  which  would  be  de- 
rimental  to  the  other.     The  owner  of  the  marital  prope  ty 
IS  also  unab  e  to  dispose  of  it  or  mortgage   it  without  the 

a^rdTitnTss^d.^'^  "'^^'  ^  ^^^"^^--^  -^^^'  --^  ^^  --- 

Any  mismanagement  of  marital  property  may  be  brouo-ht 

to  the  attention  of  the  court,  and  if  a  spouse  has  sufieedTn 

economic  injury  due  to  the   mismanagement    he  is   entitled 

aim^Tf'lirtr'  '  "^^'^  '''-''''  ''  '^'^'^''y  proLc?ed      The 
aim    of    all    the    provisions    regarding    the    property    of    the 

spouses   IS    of  course,   protection   for   the   wife    who     n   the 

majority  of  the  instances,  gives  her  efforts  to  th;  home  and  ' 

t7lZ\ZT  "  '^^^"^^  ^^^^^"^^-"^  -^^P-^-t  by 
The  private  property  of  a  spouse  is  entirely  his  own  with 
no  conditions  attached  and  can  be  used  or  disposed  of  by 
him  at  his  pleasure.  Property  may  be  made  private  by  either 
prenuptial  or  postnuptial  agreement  between  the  spouses 
may  be  private,  if  given  to  the  owner  on  the  condition  that' 

ditloT^naS"'  ^^  '  ^"'^^^^^'  ''  ''-  -^^  ^'^  --  -- 

The   law   makes   each   spouse   liable   with    his   private    or 

afte;le'::r'''  '"t.'^'^^  ""^^^^  '^  ^^"^  either'before  or 
a    er  the  marriage.     He  is  not  liable  for  the  payment  of  the 

o  her     debts,  unless  they  have  been  made  to  Uet  the  ne  d 
•Lagberedmngens  forslag  etc.,  IV,  p.  171.  ~~ 


e 


Legislation  in  Sweden  93 

be  joint  in  nature.  Since  the  law  regards  husband  and  wife 
as  two  free  individuals,  they  can  also  enter  into  valid  con- 
tracts with  each  other,  a  right  which  the  law  carefully  cir- 
cumscribes to  protect  creditors. 

Formerly,  prenuptial  agreements  could  be  entered  into 
between  husband  and  wife  for  the  purpose  of  retaining  con- 
trolling power  over  property  declared  private  by  the  agree- 
ment Such  an  agreement  can  now  be  entered  into  for  one 
purpose  only.  It  can  either  declare  private  property  marital 
property,  or  vice  versa.  Formerly,  valid  only  if  entered  into 
before  the  marriage,  it  is  now  binding  even  though  it  may 
be  drawn  up  later.  Ordinary  gifts,  in  harmony  with  the  soci- 
al status  of  the  family,  may  be  given  by  one  spouse  to  the 
other  without  any  agreement,  subject  to  conditions,  which 
aim  to  protect  both  the  receiver  of  the  gifts  and  the  creditors 

of  the  estate. 

Should  either  spouse  abuse  his  right  to  control  his  own 
marital  property  or  in  other  ways  so  manage  his  economic 
affairs  that  his  family   suffers,  the  other  may  apply  to  the 
court    for    separation    of    the    property.      This    can    also    be 
brought  about  in  case  the  estate  of  a  spouse  has  been  sur- 
rendered to  the  creditors  or  if  husband  and  wife  have  mutu- 
ally agreed  to  the  action,  even  though  all  the  above  reasons 
may  be  lacking.    The  court  will,  upon  receipt  of  the  applica- 
tion    decree    that    the    property    be    separated.      When  the 
actual  division  is   made,   a  spouse,  who   can  prove   that  his 
interests   have   been   seriously   injured   by   the   other's   abuse 
of  his  controlling  power  over  his  marital  property,  may  de- 
mand and  receive  compensation  for  the  loss  and,  in  some  in- 
stances, damages.  , 
In  case   either   spouse  dies,  the  law  protects   the   others 
interests  in  a  very  adequate  manner.     According  to  previous 
legislation,    the   right   of   inheritance   has   been    entirely   gov- 
erned by  the  principle  of  blood  relationship,  making  it  im- 
possible for  a  spouse  to  inherit  from  the  other      Instead,  the 
former  had  a  preferential  right  to  one  twentieth  of  the  chattel 
property   of    joint   nature.     At   any    rate,    he   could   take    from 
the  estate  "his  wedding  ring,  bed,  and  necessary  clothing 
even  though  the  value  of  this  might  exceed  one  twentieth 
of  the  joint  property.    A  widow,  besides,  had  a  right  to  her 
morning  gift,  which   was   given   her   only   in   case   she   was 
childless      This   gift   was    to    be   taken   from   the   husbands 


^^  Marriage  and  Divorce 

share  of  the  joint  property  and  was  to  consist  either  in  real 
property  to  the  vakie  of  one  sixth  of  his  share  or  in  chattels 
to  the  value  of  one  twentieth  of  his  share.  The  chattel  prop- 
erty became  hers  but  in  the  real  property  she  received  only 
a  life  estate.  If  the  deceased  left  no  heirs,  the  property  be- 
longed to  the  state  or  in  some  cases  to  the  municipality 
Uf  late,  the  state  has  usually  relinquished  its  right  in  favor 
of  the  surviving  spouse. 

If  a  spouse  dies  intestate,  the  new  law  which  gives  to  the 
survivmg  spouse  half  of  all  the  marital  property,   when  the 
division  of  the  estate  is  made  after  the  other's  death    -ives 
him  the  right  to  inherit  the  entire  property  of  the  deceased 
shou  d  the  latter  leave  no  heirs,  i.  e.  children,  natural  or  ad- 
opted or  their  descendants,  parents,  brothers  or  sisters    nieces 
or  nephews.     In  case  no  children  are  left,  half  of  the  prop- 
erty   goes    to    the    surviving    spouse,    the    other    half    to    the 
heirs.     If  children  or  their  direct  descendants  are  found    the 
entire   property   of  the   deceased   is   inherited   by   them  '    Of 
course,    the   property    can,    by    will,    be    disposed    of    at    the 
testator  s  pleasure.     The  above  rules  do  not  apply  if    at  the 
time  of  the  death,  husband  and  wife  live  apart  or  if' a  peti- 
tion  for   separation,   divorce,   or   annulment   has   been    made 
The  morning  gift  has  disappeared,  since  the  law,  without  it' 
gives  sufficient  protection  to  the  widow. 

The  new  law  also  provides  for  the  establishment  of  a 
central  registration  bureau,  a  Marriage  Registry,  to  which 
the  courts  must  supply  certain  information  regarding  di- 
vorces, separations,  separation  of  property,  etc.  The  records 
so  obtained  shall  be  published  and  issued  periodically  by  the 
government.  Copies  shall  be  sent  to  the  courts  and  the  local 
administrators  of  justice,  where  the  public  shall  have  free 
access  to  them.  In  a  Royal  decree  issued  after  the  law  was 
passed,  the  Central  Statistical  Bureau  was  given  charge  of 
the  Marriage  Registry.  ^ 

The  Law  in  ^he    battle    in    the    Riksdag    was    centered 

flic  Riksdag.  '"^""^    ^^°^^    t^e    underlying    principles    of 

.  ^        ,      ^^^  .^aw   than    about   its   special   provisions. 

Statements  of  principles"  were  numerous  in  both  Cham- 
bers and  represented  highly  divergent  and  sometimes 
amusing  positions.  A  member  of  the  Legislative  Commit- 
tee, Professor  Reuterskiold,  in  a  lengthy  reservation  against 
the  opinion  of  the  Committee,  accused  this  body  of  being  ig- 


Legislation  in  Sweden  95 

norant  of  the  real  nature  of  marriage.    The  Law  Commission 
was  characterized  by  him   as   a  body  prompted  by   a  well- 
meaning  desire  but,  unfortunately,  supported  by   a     lack  ot 
ability  "     To  think  of  marriage  as  a  union  between  two  free 
and  equal  individuals  would  be  very  dangerous  to  society, 
not  to  mention  the  inaccuracy  of  the  conception.     Marriage 
is  not  an  agreement  between  two  individuals  but  "a  unity 
to  which  these  individuals  stand  in  a  certain  relationship  and 
which  consists  of  a  power  over  both  of  them,  the  home,  which 
is  not  alone  the  subject  or  aim  of  their  activity  but  a  self- 
contained  society,  in  which  both  of  them  shall  as  members 
be  active."     In  short,  the  family  is  a  personality,  something 
crreater  and  bigger  than  the  sum  of  its  members.    To  imagine 
that  love  and  unity  should  form  the  basis  of  this  union  was 
another  misconception  fostered  by  the  Law  Commission  and 
the  Legislative  Committee.     Duty   is   the  necessary  founda- 
tion for  marriage,  and  since  the  law  does  not  emphasize  this 
feature  it  was  fit  measure  for  ''a  people  in  decadence.        In 
an  address  to  the   Senate,   Mr.   Reuterski61d   formulated   his 
objections    more    concisely.     "One    conception  [of  marriage] 
builds  upon  the  foundation  of  love  and  love  alone.     When 
love  dies,  the  marriage  is  ethically  broken  and  a  moral  duty 
to  dissolve  the  marriage  arises.    The  other  conception  builds 
upon   duty   and   not   upon   love.      For   this   conception     love 
plays  but  one  role  in  marriage;  where  it  is  found,  a  happy 
marriage  exists,  because  a  happy  marriage  consists  m  the  vol- 
untary and  willing  performance  of   the  ethical  duties.     But 
if  the  home,  if  the  family  shall  form  the  foundation  of  so- 
ciety   this  foundation  will  be  frail  indeed,  were  it  to  depend 
solely  on  the  emotion  of  love.     If  this  love  fails,  the  founda- 
tion fails.    But,  if  we  build  upon  duty  as  our  forefathers  have 
done   for   centuries,   and   they   built   their   marriages    many   a 
time  upon  duty  alone  but  on   such  a  strong  sense  of   duty 
that  it  overshadowed   everything  else,   even   the   absence   of 
love— then  we   shall  get   strong  homes  and   lasting  marnages.'^^ 
The  objection  was  also  made  that  in  recognizing  the  indi- 
vidualities of  husband  and  wife  the  law  made  of  marriage  a 
contractual  relationship,  which  in  its  important  consequences 
4         resembled   a   partnership,   with   the   result    that   the   law    had 

^Forsta  lagnfskottets  ntldtande  nr.  27,  1920,  pp.   118-27. 
^Forsta  Kammarens  Protokoll,  nr.  34,  1920,  pp.  30-31- 


96  Marriage  and  Divorce 

been  filled  with  explicit  provisions  for  meeting  all  imagin- 
able difficulties  arising  between  the  partners  and  to  protect 
them  against  each  other. 

It  was,  of  course,  inevitable  that  the  law  should  be  termed 
an  expression  of  feministic  thinking.  One  Riksdagsman 
solemnly  declared  that  it  was  an  evidence  of  a  decaying 
"masculine  culture".  "Would  it  be  a  gain  to  humanity  if 
feminism  were  to  progress  and  exercise  an  even  greater  in- 
fluence than  masculinism?  Permit  me  to  doubt  it.  I  really 
wonder  if  the  women  as  a  whole,  with  the  exception  of  the 
feminists,  are  very  much  attracted  by  any  form  of  feminism? 
I  believe  that  manliness  is  even  for  them  most  attractive."^" 
Several  speakers  held  that  the  law  did  not  represent  the  views 
of  the  Swedish  women,  that  the  woman  member  of  the  Law 
Commission  belonged  to  the  upper  classes  and  was,  conse- 
quently, unable  to  speak  except  for  a  very  small  group,  and 
that  if  the  law  were  to  pass,  the  most  dire  results  would 
come.  One  inevitable  efifect  would  be  the  lowering  of  the 
marriage  rate,  since  the  new  law,  although  favorable  to  the 
women  and  actually  designed  to  "entice"  them  into  mar- 
riage, would  deter  the  young  men  of  the  country  from  enter- 
ing a  relationship  where  their  authority  would  at  every  turn 
be  questioned  and  where  the  peace  and  calm  of  their  prover- 
bial "castles"  might  at  any  time  be  invaded  by  the  law. 

It  was  declared  that  the  law  was  a  distinct  case  of  class 
legislation,  and  did  not  at  all  suit  the  people  of  the  country 
districts,  while  it  placed  upon  a  secure  basis  the  ever  in- 
creasing "free  marriages",  "Stockholm  marriages,"  "concubin- 
ates",  or  whatever  name  they  be  given.  The  extension  of 
the  wife's  right  to  control  her  own  property  and  the  dis- 
putes that  would  undoubtedly  result,  would  lead  society  to 
cause  unwarranted  interference  in  the  afifairs  of  the  home, 
"the  state  within  the  state."  What  dangers  might  not  lie 
hidden  in  the  power  of  guardianship  over  her  child,  which 
the  law  granted  the  mother?  Would  not  her  ambitions 
cause  her  to  give,  or  rather  try  to  give,  the  child  an  education 
or  a  higher  social  status  which  would  prove  injurious  to  the 
family  finances,  to  the  child,  and  to  society?  Certainly  it 
would  have  a  detrimental  influence  on  the  practical  pursuits, 
such  as  agriculture  and  the  trades,  should  the  feminine  point 

^•'Mr.  Magnusson  in  a  speech  in  the  second  chamber.  See  Andra 
Kammarens  Protokoll,  nr.  40,  1920,  p.  38. 


Legislation  in  Szvcdcn  97 

of  view  become  dominant  in  the  guidance  of  the  child's  edu- 
cation. All  of  which  goes  to  show  that  the  law  did  not  lack 
opponents. 

If  those  who  saw  in  the  law  a  real  danger  to  society  were 
liberal  in  the  expression  of  their  views,  the  same  holds  true 
of  the  supporters  of  the  measure.  According  to  them,  the 
law  was  based  on  a  conception  of  marriage,  which  looks 
upon  "marriage  as  an  ethical  institution,  which  places  equal 
demands  for  selfsacrifice  and  duty  upon  husband  and  wife, 
while  giving  to  both  the  same  vital  values.  It  should  rest 
on  a  unity  won  by  mutual  consideration  and  not  on  a  duty 
of  obedience.  Marriage,  as  a  legal  institution,  should  not 
be  endangered  by  being  built  upon  the  same  ethical  founda- 
tion upon  which  it  rests  as  an  ethical  community."^  The  aim 
of  the  law  is  "to  create  legal  equality  between  husband  and 

wife and  the  proposal  is  thoroughly  characterized  by  a 

desire  to  strengthen  the  family  and  the  home,  building  upon 
the  principle  that  within  the  home  there  should  be  freedom 
and  individual  responsibility."^^  Senator  Lindhagen  com- 
mended the  proposed  law  because  of  its  obvious  attempt  to 
foster  spiritual  values,  as  seen  by  the  provision  which  recog- 
nized a  wife's  earnings  as  important  as  her  husband's  in  con- 
tributing to  the  maintenance  of  the  family .^^ 

The  expressed  fear  that  the  minute  legal  provisions  would 
mar  the  spiritual  nature  of  the  marriage  by  making  it  a  kind 
of  partnership  was  met,  first  of  all,  by  the  Legislative  Com- 
mittee. "Such  fears  are,  in  the  opinion  of  the  Committee,  un- 
founded. They  seem  to  be  based  on  a  misconception  of  the 
aim  of  marriage  legislation.  The  civil  law  should  not  and 
cannot  decide  upon  the  content  of  a  marriage,  a  content 
which  is  of  spiritual  nature,  but  should  limit  itself  to  regulat- 
ing its  external  and  material  phases.  The  result  is  that  mar- 
riage appears  in  the  laws  as  a  complex  of  material  rights  and 
duties.  The  great  mass  of  its  provisions  have  reference  to 
the  solution  of  disputes  arising  between  spouses,  and  have 
therefore  no  importance  for  normal  marriages.  Because 
these  provisions  have  been  made  more  complete  in  the  new 
law,  it  does  not  necessarily  follow  that  marriage  has  thereby 

^^Stenbeck,  E.,  Den  nya  dktcnskapslagen  och  kritiken  ddremot,  p.  6. 
i-State  Councillor  Unden  in  the  Second  Chamber.     See  Andra  Kam- 
marcns  Protokoll,  nr.  40,  1920,  p.  63. 

^^Forsta  Kammarens  Protokoll,  nr.  34,  1920,  p.  68. 


98  Marriage  and  Divorce 

become  materialized.  Unity  in  the  marriage  does  not  suffer 
because  its  foundation,  in  agreement  with  the  ideas  of  the 
age,  is  assumed  to  be  love  and  concord,  won  by  mutual  con- 
sideration, instead  of  the  guardianship  of  the  husband."** 
Professor  Ekeberg,  a  member  of  the  Commission,  wrote,  "It 
is  obviously  natural  that  most  marriages  are  arranged  with- 
out the  slightest  reference  to  the  law.  This  has  been  the 
case  until  now,  and  will  continue  to  be  the  case.  Is  it  pos- 
sible that  it  would  injure  anyone's  morals  to  have  the  law 
aid  unfortunate  fellow  humans  and,  if  necessary,  try  to 
strengthen  their  sense  of  duty?^''  "The  law  is  not  written  for 
the    happy    marriages.     The    happy    families    of    today    know 

little   about   the    marriage    law In    most   marriages,    the 

husband   and  wife  adjust  themselves   to   each  other's  wishes 

The  aim  of  the  law  has  been  to  seek  an  adjustment  of 

conditions  that  could  be  improved  and  give  the  wife  a  more 
secure  position  in  the  family.  Too  much  is  expected,  if  the 
law  is  asked  to  foster  happy  homes. "^*'  Senator  Akerman 
very  wisely  suggested  that  both  the  enthusiasts  and  the  vio- 
lent opponents  might  take  the  matter  calmly,  because  "a  law 
makes  no  miracles  either  for  good  or  for  bad."  To  those 
who  feared  that  the  new  law  would  destroy  the  home,  he 
said  that  so  far  as  he  could  see  "the  destroyers  of  the  home 
were  bad  temper,  desire  for  power,  unfaithfulness,  drunken- 
ness, sickness,  poverty,  and  other  misery,"^'  which  no  marriage 
legislation  could  coml^at. 

^*F'6rsta  Lagutskottets  utldtande  nr.  27,  1920,  p.  11. 
i^Article  in  Aftoiibladct,  Feb.  20,  1920. 

^•'Mr.  Hederstjerna  in  the  Second  Chamber.     See  Andra  Kammarcns 
Protokoll,  nr.  40,  1920,  pp.  41-42. 

^^Forsta  Kammarens  Protokoll,  nr.  34,  1920,  p.  19. 


PART  THREE 


The  Social  Significance  of  the 
New  Marriage  Law 


CHAPTER  SEVEN 

THE  SOCIAL  SIGNIFICANCE  OF  THE  NEW 
MARRIAGE  LAW 

"The    Law   is   only   a    memorandum.     We    are    super- 
stitious and   esteem   the   statute   somewhat ;    so   much   life 
as  it  has  in  the  character  of  living  men  as  its  force." 

Emerson. 

The  last  century  has  seen  what  is  probably  the  greatest 
relative  progress  from  a  social  point  of  view,  that  the  world 
has  witnessed.  Unknown  forces  have  been  discovered  and 
new  energies  harnessed,  so  that  phenomena  which  we  re- 
garded as  almost  supernatural  a  few  years  ago  have  become 
commonplace  to  the  man  in  the  street,  who  is  no  longer 
sceptical  of  the  achievements  of  science.  Our  control  over 
the  forces  of  nature  has  greatly  increased  and  the  revolution 
that  has  occurred  in  transportation  has  made  the  world  many 
times  smaller.  Our  ingenuity  has  opened  new  ways  of  en- 
larging our  food  supply  and  creating  other  necessities  of  life. 
Our  pursuit  of  new  sensations  has  made  us  devise  more  and 
better  means  of  satisfying  our  desires.  In  all  the  material 
things  of  life  we  have  been  increasingly  successful  and  from 
this  point  of  view  our  social  development  has  been  little  short 
of  marvelous. 

But,  while  we  have  spent  our  powers  in  building  up  a 
material  civilization  to  satisfy  our  bodily  wants,  we  have  un- 
wittingly released  social  forces  that  have  moved  beyond  our 
control.  We  discovered  steam  and  invented  machinery, 
which  made  our  industrial  development  possible,  with  the 
result  that  we  have  created  a  society,  which  instead  of  pro- 
viding greater  freedom  and  happiness  and  opportunity  for 
individual  development,  is  making  men  more  miserable, 
poorer.  No  matter  how  wonderful  our  inventiveness  has 
been,  as  social  engineers  we  have  been  failures. 

It  is  our  good  fortune  today  that  we  are  beginning  to 
recognize  that,  while  we  have  been  interested  in  machines, 
the  men  behind  them  have  been  neglected.    It  is  a  healthful 


102  ' 


Marriage  and  Divorce 


sign  that  we  are  teaching  the  necessity  for  a  new  individual- 
ism, an  individuahsm,  which  does  not  have  selfish  aims    but 
desires  to  develop  in  each  individual  all  his  best  qualities  in 
order  to  make  him  an  intelligent  member  of  our  social  order 
Outside  the  University  of  Lund  stands  a  piece  of  sculpture 
which  symbolizes  this  trend  in  our  social  thinking.     Out  of 
a  massive  rock,  a  powerful  man  is  seen  to  emerge      He  is 
struggling  to   free   himself   from    the   grav   granite   which   is 
fettering    his    body.     It    is    the    spirit    of    man    breaking    the 
shackles,    with    which    an    artificial    civilization    has    chained 
him.     It  IS  the  symbol  of  a  struggle,  which  has  increased  in 
power  and    intelligent   direction,   parallel   with    the   develop- 
ment of  our  material  civilization. 

Social   progress    in    Sweden    during   the    last    century    has 
been    characterized    by    an    increasing    emphasis    on    human 
values.     This  is  shown  in  all  phases  of  its  community  life 
and  has  received  expression  in  its  laws.     The  last  few  de- 
cades, in  particular,  have  witnessed  a  wave  of  social  legisla- 
tion,   a    purposeful    "socialpolitik",    which    has    brought    the 
country  to  the  front  rank  in  this  respect.     Not  the  least  im- 
portant of  these  recent  measures  is  the  marriage  and  divorce 
legislation,   in   which    the   individualistic   tendency   is   clearly 
seen.     The  forces  that  have  brought  about  this  awakening  of 
the  social  conscience  have  been,  first  of  all,  the  growth  of 
industrialism,    followed    by    a    rise    of    trade    unionism     the 
growth    of    social    democracy,    and    the    movement    for    the 
human  rights  of  womanhood  and  motherhood.     In  order  to 
understand   the    peaceful   revolution,   which    has   occurred    in 
Sweden  socially,  industrially,  and  politically,  it  will  be  neces- 
sary for  us  to  make  a  short  survey  of  these  movements. 
The  Growth  of      Sweden,  although  one  of  the  largest  of  the 
Industrialism  European  countries  so  far  as  area  is  con- 

cerned, has  less  than  six  million  inhabit- 
ants. Its  173,000  square  miles  is  to  a  large  extent  covered 
by  great  forests  and  mountains.  Only  twelve  percent  of  the 
land  is  arable  or  natural  meadow;  of  this,  the  largest  acreage 
IS  found  in  the  southern  and  central  parts  of  the  country ' 
During  the  nineteenth  century,  the  cultivated  land  quadru- 
pled,  but  m  spite  of  that  fact  the  number  of  people  engaged  in 

;nJ,oS'^^''^"'v!^rT'"'>'  """^  ^^"^""'^  ^f  cultivated  soil  or  meadow  per 
inhabitant,  while  the  figure  for  Western  Europe  is  %  hectare  See 
Gumchard,  J.,  Siveden,  vol.  2,  p    14  ^^    nectare.       bee 


Legislation  in  Sweden  10^ 

agriculture  materially  decreased.    The  reason  is  to  be  looked 
for  in  the  development  of  industrial  enterprises. 

The    industrial    revolution    came    to    Sweden    very    late. 
While  in   1870  only  twenty  percent  of  the  people  were  en- 
gaged  in  industry,  commerce,  and  transportation,  forty-five 
pefcent  were  so  engaged  in   .910.=     As  industry   developed 
agriculture,  which  had  been  the  great  source  of  employment 
decreased  in  importance.    A  steady  stream  of  men  from  the 
farms  brought  a' new  labor  supply  to  the  manufacturing  in- 
dustries and  the  mines.    In  1870,  seventy-two  Pej-ce"    »«  the 
people  were  engaged  in  agriculture  and  fi^'^ing ,  in  1910   on  y 
forty-eight   percent  were  found   in   this  work.     Froni   thirty 
thousand  i n'dustrial   workers   in   l8fo  to   over     o-  h-tnd  ed 
thousand   in   1920  is   a   difference,  «h.ch   clear  y   shows  ^he 
revolutionary  change  that  has  occurred.    This  "pansion  has 

been  made  possible  by  the  P.™g'«^'«/^^^'°P"!"'  ^er  of 
den's  "white  coal  fields",  the  tremendous  latent  power  ot 
ta  numberless  waterfalls  and  turbulent  rivers.  The  exploita- 
tion of  the  rich  iron  ore  deposits  of  Lapland,  yielding  an  ore 
which  in  quality  ranks  first  in  the  world,  and  the  extraction 
Tf  the  riches  of  the  great  forests  have  made  possible  the 
development  ot  world  markets,  which  promise  o  ■.-'ease  m 
importance.  Today  Sweden  ranks  next  to  the  United  States 
in  the  value  of  its  exports  of  lumber  and  its  products. 

This  development  of  industry,  which  caused  the  national 
wealth  of  Sweden  to  double  during  the  period  from  1885  to 
tcS    brought  with  it  the  problems  of  an  mdustrial  society 
X   tendency   toward   centralization   of  wealth   and    contro 
created  a  labor  problem,  and  out  of  the  inevitable  confiict 
between  employer  and  employed  emerged  a  class-conscious 
wo  king  class,  which  is  second  to  none  in  its  mtelligence  and 
The  quflity  of  its  leadership.     In  their  struggle   for   liberty 
and    happiness,    the    workers    have    devised    two    powerfu 
weapons     a   strong   trade    union    movement   and    a   Pohtical 
party,  which   has   become   the   most  powerful   party    in   the 

country.  Workingmen's  associations  in  Sweden  date 

The  Trade  ^^^^  ^^  ^^^  j^^j,  ^„^  ,8th  centuries,  when 

union  movement.  ^^^     journeymen    organized    into    brother- 
hoods for  mutual  aid  and  protection   against  their   masters. 


'Ibid.,  vol.  2,  p.  15- 


104  Marriage  and  Divorce 

That  these  associations  were  not  regarded  with  any  great 
pleasure  by  the  latter  can  be  gathered  from  the  fact  that  a 
Royal  decree  of  1752  forbade  the  journeymen  printers  the 
right  to  peaceful  assembly,  ordered  them  not  to  "discourage 
an  apprentice  or  advise  him  to  quit  the  trade,"  and  specified 
that  a  master  printer  had  the  right  to  take  as  many  apprentices 
as  he  wanted.  The  masters  had  suspected  that  the  journey- 
men wanted  to  keep  the  wage  high  by  attempting  to  gain 
a  monopoly  on  the  labor.'^  Several  other  trades  had  similar 
organizations,  which  largely  had  the  nature  of  benefit  so- 
cieties and  which  seem  to  have  lost  their  energies  by  the 
beginning  of  the  nineteenth  century. 

In  the  sixties  and  seventies  a  new  wave  of  organization 
came.     1  he  workingmen's  associations  were  formed,  a  phase 
in  the  development  of  trade  unions,  which  seems  to  be  uni- 
versal.    They  were  of  the  same  type  as  our  own   National 
Labor   Union.     "Their   form   of   organization   was   too   loose 
and  their  program,  a  mixture  of  humanitarian,  political,  and 
benefit    teatures,    was    too   weak    for    the    new    conditions    in 
which  the  worker  found  himself  due  to  industrial  and  social 
progress.     The    influence   of  the   worker   was   also   graduallv 
displaced  by  that  of  other  elements.     The  workingmen's  as- 
sociations  could   not   by   their   efforts   create   an   independent 
labor  movement  in  Sweden  or  put  their  stamp  on  it      They 
did,  however,  leave  an  indelible  mark  in  the  worker's  waken- 
ing realization  of  the  need  for  organization."* 

The   trade    union    movement    in    Sweden    was    powerfully 
influenced  by  the  experience  of  the  great  industrial  nations, 
particularly    England    and    Germany.      The   first   craft    union 
was  formed  in  Stockholm  as  early  as  1846  by  the  typograph- 
ers, but  not  until  thirty  years  later  did  the  movement  make 
any  progress.     In    1872   the   bookbinders   organized    in    1874 
the  hatters,  in   1876  the  paperhangers.  and   in   1880  the  car- 
penters.   All  these  unions  had  their  birthplace  in  Stockholm  ' 
Before  any   attempts   were   made   to   unite   the   locals   of  ihe 
same  craft  into  national  unions,  the  need  for  cooperative  ef- 
fort   had    been    felt.      In    1882.    the    woodworkers'    union    of 
Stockholm  issued  an  invitation  to  other  local  unions  to  elect 


^Fackfdreningsrdrelsen,  I,  Sverge,  p.  18. 
*Soderberg,   Ernst,  Svcnsk  arbetarrorelse,  p.   5. 
"Fackforemngsrorclscn,  I,  Sverge,  pp.  39-40. 


Legislation  in  Sweden  105 

delegates  to  a  city  central  committee.    These  delegates  met 
the  following  year   and    drafted   by-laws.     The   aim    of   the 
organization%vas    "to    unite    the    workers    o     the    differen 
trades  in  a  strong  labor  party  to  work  unitedly  for  reforms 
necessary  for  a  social  development  founded  on  a  sound  and 
reasonable  basis.'-     A   program  was  prepared,   according  to 
which  the  committee,  among  other  things,  was  to  work  tor  a 
ten-hour  maximum  day,  sanitary  inspection  of  workshops,  a 
public  employment  bureau,  old  age  insurance,  state  subsidies 
or  loans  for  workers'  associations  and  cooperative  enterprises, 
arbitration  in  labor  disputes,  equal  franchise,  better  schools 
etc      The  program  was  later  changed  in  many  respects  but 
the  occurrence  of  several  strikes  and  the  growth  of  the  So- 
cial Democratic  Party,  the  program  of  which  was  in  many 
respects  like  that  of  the  Committee,  soon  caused  the  latter  s 
decline      The  need  for   national   organizations,   which   could 
provide  better  support  in  industrial  disputes,  was  also  felt. 
In    1886    the    f^rst    Scandinavian   trade    union    congress   was 
held  in  Gothenburg.     This  congress  passed  a  resolution  fav- 
oring the  organization  of  national  trade  unions.     The  same 
year  the  typographers  formed  their  national  union,  followed 
by  the   mail  clerks.     The   painters   organized   on   a   national 
scale  in  1887,  and  the  iron  and  metal  workers  the  following 
year,  after  which  progress  was  very  rapid.^ 

To  gain  still  greater  strength,  the  national  unions  united 
in  one  great  federation,  the  Federation  of  Labor,  organized 
in  1898      Its  aim,  as  formulated  at  its  first  congress  in  1898. 
was  "to  give  financial  support  to  a  union  attacked  by  a  lock- 
out  if  the  latter  affected  a  certain  percentage  of  that  union  s 
workers  "^    In  1900,  its  activity  was  enlarged  to  include     et- 
forts    to   organize   workers"    and   the   preparation   of    reports 
re-arding  union   labor   in   the   country.     From    1909   on,   the 
Fe^deration  has  also  given  financial  support  to  strikes.     Ac- 
cording to  the  latest  by-laws,  those  of  191 7.  the  Federation 
aims  "to  organize  workers  into  unions  and  to  determine  gen- 
eral policies,   particularly   in  respect  to  the  attitude  toward 
the    employers'    associations;    to    unite    locals    into    national 
unions;   to    spread    the    knowledge    of    social    and    economic 

^Ibid.,  pp.  51-52. 
Vbid.,  pp.  60,  94  et  seq. 
^Ihid.,  p.  176. 


106  Marriage  and  Divorce 

problems  among  the  trade  unions;  to  make  studies  and  com- 
prehensive reports  of  the  trade  union  movement  in  the  coun- 
try; to  lend  financial  support  in  case  of  lock-outs  or  when 
the  right  to  organize  is  threatened ;  to  give  financial  support 
to  unions  in  their  attempt  to  build  assembly  halls  and  'Peo- 
ple's Houses';  to  maintain  the  relationship  with  correspond- 
mg   organizations   in   other   countries   and   work   for   mutual 
financial    support    between    them."«      In    1920,    the    Federation 
consisted  of  31  national  unions  with  2.799  locals  and  a  mem- 
bership, which,  from  7,000  in  1899.  had  grown  to  280029  in 
December,  1920.1"     This  means  that  some  57  percent  of  the 
Swedish  workers  are  members  of  the  Federation.    If  we  add 
to  this  the  membership    (about  110,000)   of  the  independent 
unions,  such  as  the  railroad  brotherhoods,  the  textile  workers 
the  mail  clerks,  the  electrical  workers,  the  seamen's  union' 
the  agricultural  workers,  etc.,  which,  although  fully  in  sym- 
pathy with  the   Federation   have   not  joined   it  for  financial 
reasons,  the  labor  organizations  would  probably  include  be- 
tween sixty  and  sixty-five  percent  of  all  the  workers  in  the 
country,  a  very  remarkable  percentage,  which  has  no  equal 
outside  of  Scandinavia  and  which  to  a  great  extent  explains 
the  trend  of  social  legislation  in  Sweden  during  the  last  fifty 
years. 

The  big  general  strike  of  1909  taught  the  workers  a  lesson 
The  labor  congress,  which  met  shortly  afterwards,  went  on 
record  in  favor  of  a  gradual  change  from  craft  unionism  to 
industrial  unionism,  which  would  provide  a   much   stronger 
weapon  of  defense.    A  committee  was  appointed  for  the  pur- 
pose  of  working   out   new   by-laws.      The   congress    of    1910 
was  presented  with  the  proposed  draft,  which  did  not  depart 
from  the  status  quo,  except  that  it  recognized  the  importance 
of  industrial  unionism  and  expressed  itself  favorably  toward 
It  .  The  Federation  today  consists  of  both  craft  and  industrial 
unions.     The  tobacco  workers,  the  metal  workers,  the  shoe 
and  leather  workers,  the  saw-mill  workers,  the  stone  workers, 
the  brewery  workers,  the  bakers,  and  the  miners  are  organ- 
ized by  industries  instead  of  by  crafts. 

igiy^^''^^'^''  ^'"*  ^^"'^•^^''^««"«'«''"^"  i  Sverge   .    .    .   antagna  i  augusii 
^Werdttelse  over  Landsorganisationens  verksamhet  ar  1920,  pp.  65-66, 


Legislation  in  Sweden  107 

The  Soeial  Parallel  with  the  development  of  the  trade  ^ 

Democratie  unions  for  the  purpose  of  pro  ecting  their 

PaZ  interests   in   industry,   the   workers   formed 

^^^^^  the    Social   Democratic   Party   for   political 

AUhnnfrh  there  is  now  no  direct  connection  between 
tu rFedetartd't":  Pany,  the  latte.  i^'argely  composed 

o,  union  .embers  -^^^™-{,  |  .^^^^^l^^'^as  ^^a^te^d 
rr.st  fTX  n  sttle  purposesfthe  country  has  been 
a-vld^d^- Jo  distnc.  and  -  >at.er  .n.  w..e.  ;o;~^^ 

rX  e"":rr I'at'rn  locals.     Any  .oca,  un.on  ca 

Par7compulsory  for  its  members.^  but  oppos.t.on  made  .t 

^"Ivte'  in'thTrcotnlif  h^M'r^he  workers  have  securely 

,t,W    h^d  the  principle  of  collective  bargammg,  and  gained 

rlrea    i"P  ovem  nt  in  working  conditions,  etc.,  the  poht.cal 

one  reoresentative  in  that  body  in  1902.  the  number  had  in 
one  «P'"<=""".  ,.    The  Liberals  have  shown  a  great 

i:::ing       warVtat'e  socialism   and  have   been  active  allies 
of  the  Social  Democrats  in  the  promotion  of  socia    leg.sla- 
Hon      The  best  indication  of  the  change  in  political  tone    s 
Tcomposition   of   the  Senate,   the   First   Chamber,   which, 
until    ig'o,   succeeded   in   maintaining   a   staid   conservat  sm^ 
The  increase  of  Social  Democratic  senators  from     3  ■"  igM 
to  Ko  in  1921  has  thrown  the  balance  of  power  to  the  libera 
groips.     The  hope  was  expressed  that  when  the  women  of 
fhe   country   were   given   their   first   opportunity   to   vote   in 
'national  elections,  tlere  would  be  a  healthful  ch-ge    o    anj 
conservatism,  but  this  hope  was  crushed  '"  ^l^^  *='«"°o"J 
1921.     With  the  aid  of  the  women  voters,  the  Social   Dem 

npackforenmgsrcrelsm,  I.  Sverge.f.  160  -I  seq. 
nAmerkan-Scandtnavian  Review,  December,  1921,  p.  829. 


108  Marriage  and  Divorce 

ocrats  alone  registered  37  percent  of  all  the  votes  and  placed 
143  members  in  the  Riksdag,  fifty  of  them  in  the  First  Cham- 
ber. Together  with  the  Liberals,  the  Left  Socialists,  and  the 
Communists,  they  make  up  sixty-three  percent  of  the  Riks- 
dag, an  overwhelming  majority.  It  is,  in  particular,  to 
Hjalmar  Branting,  the  present  premier  of  the  first  purely 
Socialistic  ministry  in  Sweden,  that  the  Social  Democratic 
Party  owes  its  greatness;  i.  e.,  if  it  is  possible  to  name  any 
one  individual.  His  able  statesmanship  and  clear  vision  have 
saved  it  from  many  of  the  pitfalls,  which  were,  either  in- 
tentionally or  not,  placed  in  its  way. 
The  Woman's         There  have  been  several  important  reasons 

,-  for  the  rapid   development  of  a   movement 

Movement.  r       ..u     •    1  j  r  u-  u   ■ 

for   the   independence   of   women,  which   in 

Sweden   has   taken   two   very   distinct   forms,    one   airning  to 

enfranchise    the    woman,    the    other    aiming    to    improve    her 

social  status  by   means  of  education,   one  stressing  equality 

with   the    man,   the   other    emphasizing   the    supreme    dignity 

of  motherhood  and  wifehood,  one  headed  by  Mrs.  Wicksell 

and  others,  the  other  championed  by  Ellen  Key. 

Various  causes  have  operated  to  produce  a  great  surplus 
of  women  over  men  in  Sweden.  In  1910.  when  the  census 
was  taken,  there  were  2.698,729  men  and  2,823,674  women, 
the  men  making  up  48.9  percent  of  the  population.  This 
difference  between  the  number  of  men  and  women  has  al- 
ways existed,  but  has  not  made  its  appearance  until  mature 
age  has  been  reached.  Thus,  of  every  100  children  born  in 
1910,  51.4  percent  were  boys.  Due,  however,  to  a  larger 
infant  mortality  among  the  boys  and  a  higher  mortality  after 
the  age  of  eighteen,  there  is  an  increasingly  greater  surplus 
of  women  over  men.  This  condition  seems  to  be  slowly 
changing  to  a  more  favorable  equalization.  In  1750,  for 
instance,  the  proportion  between  men  and  women  was  as  47 
to  ^2,'' 

It  is,  however,  the  proportion  between  unmarried  men  and 
women  in  the  marriageable  age  which  is  of  still  greater  im- 
portance in  this  connection.  An  examination  of  statistics 
indicates  that  at  the  end  of  1910  there  were  482,307  unmar- 
ried men  between  the  ages  of  20  and  50,  while  the  number 
of  unmarried  women  between  17  and  45  was  580,817,  or  120 

i^Flodstrom,  I.,  op.  cit.,  pp.  582-83. 


Legislation  in  Stvcden  109 

women  to  lOO  men.  Even  this  is  an  improvement  over  the 
year  1750,  when  there  were  no  fewer  than  154  women  of  the 
ages  mentioned  to  each  100  men.^* 

In  addition  to  this  great  surplus  of  unmarried  women  of 
\yorking  age,  it  is  to  be  noted  that  the  age  of  marriage  is 
quite  high,  the  average  being  30  years  for  the  men  and  al- 
most 27  years  for  the  women.  When  we  also  consider  the 
fact  that  the  marriage  rate  has  decreased  to  such  an  alarming 
extent  that  the  Riksdag  has  even  taken  official  notice  of  the 
fact  and  voices  have  been  raised  in  favor  of  governmental 
measures  to  aid  the  formation  of  families, ^^  we  can  under- 
stand that  the  ground  has  been  well  prepared  for  a  strong 
woman's  movement.  From  1750  to  1910.  the  number  of 
married  women  per  million  of  total  population  decreased 
from  113,637  to  87,329,  while  for  Western  Europe  today,  the 
average  number  of  such  women  is  equal  to  the  number  in 
Sweden  150  years  ago.^*' 

The  reasons  for  this  preponderance  of  women  and  the  low 
marriage  rate  are  primarily  the  growth  of  industrialism  and 
a  large  emigration  to  United  States.  The  latter  dates  roughly 
from  the  early  forties.  From  that  time  up  to  1914,  some 
1,350,000  persons  emigrated,  while  only  280,000  returned,  a 
net  loss  of  more  than  a  million.  These  emigrants  were 
largely  from  the  farms.  They  were  young  in  years  and  the 
men  outnumbered  the  women  by  far.  The  economic  condi- 
tions, which  drove  them  to  seek  their  fortunes  in  a  strange 
country,  forced  those  who  remained  to  defer  their  marriages 
until  they  were  better  able  to  support  a  family.  The  desire 
for  a  higher  standard  of  living,  and  the  transition  from  an 
agricultural  to  an  industrial  society  also  operated  to  limit 
the  family.  Were  it  not  for  the  fact  that  Sweden  has  such  a 
low  mortality  rate,^^  and,  in  consequence,  such  a  long  ex- 
pectation of  life  (an  average  of  54  and  one  half  years  for  men 

^^Ibid,  p.  583. 

i-'^See  motion  by  Senators  von  Koch  and  Petren,  Forsta.  Kammarcns 
Protokoll  nr.  28,  1920,  p.  82. 

^*'Guinchard,  J.,  op.  cit.  vol.  I,  p.  134,  table  23. 

^^^14.89  deaths  per  thousand  of  population  in  the  decade,  1900-1910,  the 
lowest  ever  observed  in  any  European  country,  Scandinavia  excepted.  In  the 
age  group  0-5  years,  the  mortality  in  Sweden  is  41%  lower  than  in  Western 
Europe,  34%  lower  than  in  France  and  31  %  lower  than  in  England.  In 
every  age  group  between  15  and  75  years,  the  mortality  is  25%  lower  in 
Sweden  than  in  Western  Europe.     Ibid.,  p.  138. 


110  Marriage  and  Divorce 

and  57  years  for  women)  the  genetic  growth  of  the  country 
would  practically  stop. 

What  has  happened  as  a  result  of  the  conditions  brought 
out  by  these  figures?  The  existence  of  a  large  surplus  of 
women  without  any  opportunity  to  establish  a  normal  fam- 
ily life,  caused  their  early  absorption  by  the  rapidly  develop- 
ing industries,  and  the  relatively  high  marriage  age  gave 
most  women  an  opportunity  to  be  independent,  in  some  way 
or  other,  before  marriage,  if  they  married  at  all,  facts  that 
have  contributed  greatly  to  the  purposeful  agitation,  which 
the  women  have  carried  on  for  the  improvement  of  their 
position.  Woman's  work,  it  has  been  said,  is  in  the  home. 
This  is  no  longer  such  a  self-evident  truth  as  it  was  a  hundred 
years  ago.  Her  occupation  as  housewife,  a  dignified  posi- 
tion, which  requires  a  varied  ability,  has  been  much  en- 
croached upon  by  our  modern  industrial  life.  She  was  form- 
erly occupied  in  the  home  with  the  preparation  of  food,  the 
making  of  clothing,  etc.  Today  the  clothing  is  made  in 
factories,  and  much  of  the  food  in  dairies,  canneries,  and 
other  industrial  establishments.  It  was  as  natural  for  the 
woman  to  follow  her  job  out  of  the  home  as  it  was  for  the 
man  to  do  so,  when  the  industrial  revolution  came  and  crush- 
ed the  handicrafts.  It  is  therefore  not  to  be  wondered  at  that 
we  find  women  composing  almost  the  entire  working  force 
in  the  textile  and  clothing,  dairy  and  food  industries.  In 
1918,  three  fourths  of  the  textile  and  clothing  workers  were 
women,  while  in  the  tobacco  factories  85  percent  of  the  work- 
ers were  women;  in  the  chocolate  and  candy  factories,  83 
percent ;  in  the  paper  box  industry,  65  percent ;  in  the  dairies 
65  percent ;  in  the  fur  trades  and  the  liquor  trades,  62  per- 
cent; etc.^*  The  last  couple  of  decades  have  seen  the  women 
in  mines  and  factories  increase  from  38,877,  in  1901,  to  50,516, 
in  1918,  or  about  13  percent^''  of  the  entire  number  of  workers 
employed  in  gainful  occupations,  a  figure  which  would  be 
probably  seven  or  eight  percent  higher  did  it  include  women 
workers  in  other  fields. 

The  need  for  the  organization  of  these  workers  was  felt 
already  in  the  eighties,  but  it  was  not  until  1902  that  the 
Women's  Trade  Union  was  formed.     It  grew  out  of  the  ef- 

'^^Sociala  Meddelandcn,  nr.  i,  1921,  p.  35. 

^^This  includes  only  women  of  age.  If  those  under  age  are  included, 
the  figure  would  reach  61,187  for  1918.     Ibid. 


Legislation  in  Sweden  111 

forts  of  Stockholm's  General  Club  for  Women  to  organize 
the  women  workers  of  that  city.  It  had  but  a  short  existence 
and  in  1908  it  merged  with  the  Tailor's  Union.  The  Federa- 
tion of  Labor  made  early  attempts  to  organize  the  women, 
and  was  very  successful.-"  In  1907  over  12,000  women  be- 
longed to  the  Federation,  but  the  big  strike  of  1909  more 
than  cut  the  number  in  two.  At  the  end  of  1910,  5,715  had 
joined,  a  figure  which  reached  the  grand  total  of  32,787,  at 
the  end  of  1920,'-^  and  undoubtedly  represents  more  than  50 
percent  of  the  women  workers,  probably  a  greater  percent- 
age than  found  in  any  country  outside  of  Scandinavia. 

The  dependence  of  women  was  felt  early.  Unmarried,  they 
were  the  wards  of  their  fathers  and  married  they  simply 
changed  guardian.  True  to  the  belief  that  woman  is  created 
for  man,  she  was  given  the  training  necessary  to  make  her  a 
good  housewife  and  mother.  Her  aspirations  to  enter  the 
domain  of  the  man  and  compete  with  him  in  the  trades  or 
professions  were  discouraged  and  often  derided.  All  her 
efforts  to  have  the  guardianship  exercised  over  her  lifted 
when  she  reached  mature  age  were  successfully  resisted. 
The  paternal  attitude  maintained  in  the  matter  by  her  op- 
ponents, is  seen  in  this  opinion  of  the  Gota  Appellate  Court 
in  1826.  "As  a  ward,  the  woman,  closely  bound  to  her  fam- 
ly  circle,  has  so  far  avoided  the  temptation  of  trying  to  create 
her   own    happiness    through    the    inheritance    received    from 

father   or   mother She   has   been    saved    the    sorrow   of 

weeping  over  the  results  of  badly  planned  enterprises  and 
carelessly  assumed  obligations;  in  short,  she  has  not  yet 
known  the  extent  of  her  own  weakness.  Led  by  the  faithful 
hand  of  friendship,  to  which  the  law  has  entrusted  the  care 
of  her  property,  she  has  avoided  falling  victim  to  the  evil 
plans  of  the  tempter,  and  has,  when  she  sooner  or  later  enters 
marriage,  not  brought  with  her  the  idea  that  the  mature  wo- 
man is  as  good  as  the  mature  man.  Instead,  she  has  regarded 
her  husband  as  her  chosen  guardian,  who  out  of  love  and 
friendship  has  taken  care  of  her  affairs,  and  has  been  fired 
by  the  true  feeling  of  submissiveness,  which  shall  always  be 
the    necessary    basis  for    happiness     in    marriage."""        It   was 

2'JMeyerson,  Gerda,  Arhctcrskornas  vdrld,  p.  153  et  seq. 

^^Berdttelse  over  Landsorganisationens  verksamhet  dr  1920,  pp.  66-67. 

22Linder,  Gurli,  Kvinnofrdgan  i  Sverige,   1845-1905,  pp.   11-12. 


\ 


1^2  Marriage  and  Divorce 

this  widespread   attitude   that   Fredrika   Bremer's   facile   pen 
tried  to  change. 

i^  /        ^t  's  interesting  to  note  the  importance  which  writers  have 

had   in   furthering  the   movement   for  women's   independence 
m   Scandinavia.     The   pioneer   work   of   Fredrika    Bremer   in 
Sweden    and    Camilla    Colett    in    Norway    foreshadowed    the 
active  propaganda  by  Strindberg,  Ibsen,  and  Brandes  and  a 
host  of  lesser  lights.     Fredrika  Bremer  was  most  concerned 
with  the  position  of  the  young  girl  in  the  home,  unable  to 
have  her  personal  wishes  fulfilled,  when  they  conflicted  with 
those   of    her   father.      In   a   novel,    Hertha,    published    in  1856, 
she  pictured  this  situation  and  was  met  by  the   most  bitter 
criticism,  a  proof  of  the  bravery  of  her  action.     She  severely 
shocked  the  sensibilities  of  her  male  readers  by  making  the 
heroine  desirous  of  studying  medicine  and  anatomy    an'd  by 
permitting  her  to  bandage  the  knee  of  a  wounded  fireman 
If    it  had    been  the   foot   but   the    knee— that  is    going    a    little 
too  far,"  said  an  outraged  critic  who  claimed  that  he  had  never 
found  a  girl  in  the  age  of  ten  to  thirteen,  who  had  had  in- 
clinations   and    ability    for    a    deeper    study    of    the    sciences. 
I  he  best  way  and  the  only  way  by  which  a  married  woman 

^.^" "^^^e   a   contribution   to   society   is   by   faithful   and 

silent    (nota    bene    silent,    mademoiselle    Bremer)    performance 
of  the  duties  in  the  home."-^ 

The  work  of  Fredrika  Bremer  bore  fruit.     Her  emphasis 
on   the  necessity   of  providing  women   with   a   better   educa- 
tion resulted   in  their  admission   to  professional   schools   and 
her  labor  for  the  removal  of  the  guardianship  over  the  un- 
married women  undoubtedly  hastened  the  legislation  in  this 
respect.     Already   in    1845.  a  law   had   been  passed  giving  a 
sister  equal   rights  of  inheritance   with   her  brother,   thereby 
changing  a  law,  which  had  remained  in  force  since  the  thir- 
teenth century,  which  gave  a  brother  the  right  to  inherit  twice 
as  much  as  his  sister.     Ten  years  later,  during  the  Riksdag 
ot   1858,  the  unmarried  woman  was  given  her  independence 
at  the  age  of  twenty-five,  which  age  was  lowered  to  twenty- 
one  in   1884,   thereby   made  to  correspond  with  that  of  the 
man.     Fredika   Bremer  herself  was   influential   in   the   estab- 
lishment of  the  Teachers'  College  for  Women  in   1861      In 
1870,   the  universities   were   opened   for  women   and   in    1884 
-^Ibid,  pp.  14-15.     Quoted. 


Legislation  in  Srvcdcn  113 

the  University  of  Stockholm  appointed  Sonja  Kowalewski 
to  a  Professorship,  the  first  European  university  to  accord 
such  honor  to  a  woman.-*  Since  then  the  development  has 
been  rapid,  until  at  present  the  bars  have  been  lowered  in 
all  but  a  few  cases.  The  State  Church,  for  instance,  has  not 
yet  decided  to  permit  the  ordination  of  women  as  pastors. 

The  work  of  the  various  organizations  by  women  for  the 
purpose  of  improving  their  political  and  social  status  has 
been  highly  successful.  The  first  association  of  this  kind  was 
the  Society  for  the  Married  Woman's  Property  Rights,  es- 
tablished in  1873.  It  was  the  result  of  the  neglect  which,  in 
the  fight  for  the  independence  of  the  sex,  the  married  women 
had  suffered.  It  is,  of  course,  natural  that  the  emphasis  of 
the  pioneers  should  have  been  placed  on  freedom  for  the 
unmarried  women,  because  of  the  special  problems  created 
by  their  great  number  and  their  preponderance  over  men. 
In  1895,  the  Society  merged  with  the  Fredrika  Bremer  So- 
ciety, founded  in  1884  for  the  purpose  of  promoting  "a  sound 
and  rational  development  of  the  work  for  the  advancement 
of  women,  morally  and  intellectually,  as  well  as  socially  and 
economically."  The  latter  has  had  a  very  successful  career. 
The  Social  Democratic  women  have  organized  into  one 
body,  which  in  1914  had  some  fifty  local  branches. ^^ 

It  was  not  until  1902  that  an  organization  for  the  promotion  of 
woman  suffrage  was  definitely  formed.  The  National  Society 
for  the  Enfranchisement  of  Women  has  not  spent  all  its  ef- 
forts on  political  agitation  alone.  Through  its  locals,  it  has 
spread  the  knowledge  of  social  problems  by  discussion  groups 
and  lectures  and  has  taken  active  interest  in  social  work.  In- 
cluding the  above  mentioned  societies,  the  number  of  women 
organized  to  gain  political  recognition  was  about  35,000  in 
1914.  The  efifect  of  their  concerted  efforts,  primarily  in  the 
educational  field  the  militant  suffragette  being  unknown  in 
Sweden,  was  a  series  of  cocessions  ending  with  a  constitu- 
tional amendment  in  1920,  which  gave  the  women  the  right 
to  vote  in  national  elections,  their  right  to  do  so  in  communal 
elections  having  been  given  them  years  before.  In  1922,  two 
Social  Democratic  women,  two  Liberals,  and  one  Conserva- 
tive were  elected  to  the  Riksdag.^® 

^^Guinchard,  J.,  op.  cit.,  p.  735  et.  seq. 
^^^American-Scandinavian  Reviexv,  January   1922,  p.  41. 


114  Marriage  and  Divorce 

It  is  impossible  to  write  about  the  progress  of  the  femin- 
ist movement  in  Sweden  without  mentioning  the  contribution 
of  Ellen  Key.  It  was  with  apprehension  that  she  viewed 
the  indiscriminate  demands  of  the  early  feminists  for  abso- 
lute equality  with  men  in  all  fields  of  labor.  She  severely 
criticized  their  desire  to  imitate  the  man,  instead  of  demand- 
ing freedom  of  opportunity  and  recognition  of  individuality, 
without  sacrificing  the  home,  which  she  considered  the  pro- 
per sphere  for  the  woman.  She  became  the  champion  of  a 
glorified  motherhood.  To  her  the  rights  of  childhood  were 
even  greater  than  the  rights  of  women,  and  her  influence 
is  clearly  seen  in  the  child  welfare  legislation  of  the  last 
decade.  Her  enemies,  particularly  numerous  after  her  famous 
lectures  in  1895-96  on  "Misused  Womanpower"  and  "The 
Natural  Spheres  of  Labor  for  Women",  have  gradually  come 
to  appreciate  the  great  value  of  her  untiring  efi^orts  to  realize, 
not  so  much  political  equality,  as  the  opportunities  for  women 
to  gain  intellectual  and  moral  freedom. 


It  is  these  movements  that  have  colored  the  recent  social 
legislation  in  Sweden.  Their  influence  is  unmistakably  pres- 
ent in  the  Old  Age  Pension  Law  of  1913,  in  the  Eight-Hour 
Laws  of  1919  and  1921,  in  the  Law  of  1917  concerning  Chil- 
dren born  out  of  Wedlock,  in  the  Poor  Law  of  1918,  in  the 
recently  proposed  Child  Welfare  Law,  and  finally,  in  the 
Marriage  and  Divorce  Law  of  1915  and  the  Law  of  1920 
concerning  the  Married  Woman's  Status.  In  a  recent  article 
in  the  Forum,  a  liberal  monthly,  a  writer  asks,    "Who  will 

question  the  statement that  the  socialistic  labor  politics 

has  raised  human  values  and  filled  cultural  needs,  that  it  has 
sharpened  the  social  conscience  and  given  rise  to  the  pro- 
tective legislation  of  today;  that  it  has  encouraged  equality 
before  the  law  and  prepared  the  way  for  a  general  democratic 
development;  and,  that  it  has  organized  the  scattered  groups 
of  guerilla  warriors  in  the  labor  markets  into  well  disciplined 

armies? Who  will   furthermore   deny   that  the   political 

movement  among  women  has  freed  civic  rights  from  the 
bond  of  sex;  that  it  has  given  to  the  mothers  and  the 
children  of  the  nation  the  legal  protection  necessary  for  the 
budding  life  of  the  group;  that  it  has  transformed  marriage 


Legislation  in  Sweden  115 

legislation  from  a  jurisdiction  by  patriarchs  and  pashas  to 
one  between  free  and  equal  individuals;  and,  that  it  has  called 
the  attention  to  and  aroused  interest  in  the  various  problems 

arising  out  of  the  surplus  of  women? The   movement 

for  the  emancipation  of  women  and  the  labor  movement  have 
deepened  the  public  sense  of  justice  and  enlarged  the  social 
horizon,  no  matter  what  may  have  been  their  faults. "^^ 

It  has  been  said  that  nothing  shows  the  stage  of  a  na- 
tion's progress  toward  social  justice  better  than  the  position 
of  its  women.  If  that  is  true,  the  passage  of  the  marriage 
and  divorce  laws  of  Sweden  indicates  that  the  social  develop- 
ment of  that  country  has  reached  a  high  stage.  But  perhaps 
these  laws  are  simply  the  work  of  a  certain  political  group? 
Criticism  to  this  effect  was  heard  at  the  time  they  were 
passed.  It  was  said  that  public  sentiment  would  not  support 
them,  because  they  were  foreign  to  public  opinion  both  in 
principle  and  in  details.  Laws,  however,  have  not  been  rash- 
ly made  in  Sweden,  a  country  whose  people  has  of  old  been 
noted  for  justice.  When  the  rest  of  Europe,  during  the  Mid- 
dle Ages,  was  devoting  its  time  to  the  development  of  trou- 
badour poetry,  the  literary  efforts  of  the  Swedes  were  spent  on 
the  formulation  of  their  Provincial  Laws,  some  of  which  can 
truly  be  called  masterpieces,  of  which  it  has  been  said  that 
they  lack  their  equal,  at  least  in  Teutonic  countries.  It  was 
this  appreciation  for  justice  that  received  expression  in  the 
"Rules  for  Judges",  dating  back  to  the  i6th  century.  These 
rules,  so  excellent  that  they  have  been  given  a  place  in  every 
edition  of  the  Swedish  Code  up  to  this  day,  maintained  that 
when  a  law  becomes  harmful  it  is  no  longer  a  law  but  an 
anti-law  and  should  be  speedily  abolished Public  wel- 
fare is  the  greatest  law  and  what  is,  therefore,  found  to 
promote  the  welfare  of  the  people  shall  be  law,  even  though 
"All  laws  shall  be  such  that  they  serve  public  welfare  and 
the  written  law,  in  its  wording,  seems  to  prescribe  different- 
ly."-*    Finally,  the  method  of  drafting  and  initiating  legisla- 

^''^Fogelquist,  Torsten,  Samhdllspolitik  och  klasspolitik.  Forum 
(Stockholm)  January  1922,  p.  38. 

^^Domare-Reglor,  see  Sveriges  Rikes  Lag,  Schlyter's  ed.,  1886, 
Bihang,  pp.  558-59. 


116 


Marriage  and  Divorce 


tion  has  aided  in  producing  laws  that  have  not  been  ac- 
cepted until  they  have  been  found  to  be  in  accord  with  public 
opinion,  particularly  since  the  people  have  always  maintained 
a  deep  respect  for  law.  The  knowledge  of  this  national  char- 
acteristic has  made  the  legislator  wary  in  the  promotion  of 
legislation  that  might  injure  this  feeling,  and,  in  consequence 
encourage  lawlessness  and  distrust.  The  Law  Commission 
time  after  time  reiterated  that  the  marriage  and  divorce  law 
was  simply  the  codification  of  current  practices  and  beliefs. 
I  he  law  IS  only  a  memorandum,"  says  Emerson  "We  are 
superstitious  and  esteem  the  statute  somewhat;  so  much  life 
as  It  has  in  the  character  of  living  men  is  its  force." 

*    *     * 

We  are  living  in  an  age  when  mere  authority  is  becoming 
more    and    more    questioned.      The    individual    is    no    longer 
taught  to  conform,  but  to  differ,  as  long  as  his  dift'erence  is 
conducive   to  group  welfare.     We   no   longer  believe   that   it 
IS   necessary   for   the   individual   to   sacrifice   his   freedom   to 
benefit    society;    only    by    enlarging    his    freedom    and    creating 
new  opportunities   for  its    exercise    does    society    make    perma- 
nent   gains.     The    link,    which    binds    people    together    is    com- 
munity of  interest.     In   the  light  of  a  common  interest    an 
understanding  of  one  another's  problems,  an  appreciation  of 
one  another  s   difficulties  is  created.     The   more  numerous  a 
person  s  interests,  the  greater  is  his  understanding  and  sym- 
pathy, and  the  wider  his  appreciation.     With  the  growth  of 
interests,  therefore,  his  personality  is  enriched  and  he  -ains 
as   an   individual,   a   freedom,   which    ignorance   and    po^'verty 
of  interests   have  denied   him.     He  becomes,   as   a   result    a 
better  member  of  society,  since  the  quality  of  the  society 'he 

rerfinl^  '?'''^'  ^T  ^,'^^''"^  ^^^''^  P^^^P^^^^  ^"  l^^^'^'  according  to  di- 
rec  .ons  given.  These  laws  are  passed  on  by  the  Law  Council  composed 
of  three  justices  of  the  Supreme  Court  and  one  of  the  Crown  CoTrr  If 

tTtwT'T^'l'  '^u'^  "'■^  ^'"^^^^^d  ■"  R°y^l  propositions  to  the  Riks- 
dag, which  acts.     In  the  case  of  laws  of  special  importance,  as  the  n^ar- 

compoTed  oTeTne'r^'-  ^'^  °''  ^^'.  ^^^^^  '^^^  ^'^'^  special TommisTn 
composed  of   experts  is   appointed.     This   commission   begins   researches 

studies  of  experiments  already  made  in  other  countries  !tc  and  finally 
makes  its  recommendation,  substantiated  by  all  special  studies  made  This 
report  is  usually  submitted  to  a  few  hundred  or  more  officials  and  othe  s 
Ihrr'enort  ^^'7"^^-^  ^^e  country.  They  are  given  ample  t^e  to  read 
t  therlK  .""^u-  ^"^8^^^'°"^'  ^vhich  are  then  taken  into  consideration 
by  the  Cabinet,  which  prepares  the  Royal  Proposition.  It  is  a  lengthy 
process,  but  serves  its  purpose.  lengxny 


Legislation  in  Sweden  H' 

lives  in  will  be  determined  by  the  quality,  the  number    and 
the  range  of  his  interests.  Society  is  then,  in  the  last  analysis, 
within   its   members   and   the  rapidity   of   social   progress   is 
dependent  on  the  number  of  individuals  in  the  g^o^P'/^^o 
have  come  to  realize  keenly   their  interdependence   and   the 
necessity  for  mutual  understanding  and  aid.     The  most  sig- 
nificant movement  in  modern  life  is  the  rise  of  an  individual- 
ism, which  does  not  pursue  the  tactics  of  the  devil  take  the 
hindmost"  but  is  mindful  of  the  rights  of  others.    ^  The  idea 
that  it  is  the  right,  or  even  a  duty,  to  assert  one  s  own  in- 
dividuality   is    characteristic    of   our    age. 

The  social  setting  of  the  marriage  and  divorce  law,  which 
has  formed  the  subject  for  this  monograph,  is  then  clear.  It 
is  simply  an  expression  of  "the  struggle  of  the  spirit  of  man 
or  freedom",  a  very  good  evidence  of  a  nation  s  progress 
toward  social  justice.  There  have  been  favorable  conditions 
for  this  progress  in  Sweden,  one  of  which  is  a  liberty  loymg 
people   that  has   not  known   subjection   by   foreign   masters, 

another  being  the  appearance  of  ^^^^^^1"  ^^^^  P^°^^t?''hn,  't 
cussed   in  this  chapter,   that  have   inevitably   brought   about 
the  recognition  of  mutual  rights  and  duties  and  an  increasing 
need  for  freedom  of  individual  growth  and  expression.    The 
Swedish  nation  has  apparently  recognized  that  it  is  m  tlie 
promotion  of  agencies  to  meet  this  need  for  growth  and  ex- 
pression  that   social   institutions   find   their   greatest   service. 
The  recent  social  legislation  shows  that  a  consciously  directed 
progress  is  gradually  bringing  the  nation  to  a  higher  stage  of 
civitization,  which  means  "that  personality  is  liberated  with- 
in society ;  that,  finding  its  significance  withm  itself    it  more 
freely    relates    itself    to,   and    cooperates    with,   vhat    of  _  others ; 
that,    therefore,   order   ceases   to    consist    in    uniformity    and 
suppression  and  becomes  a  condition  of  liberty,  being  based 
more  on  conscious  common  will  and  less  on  an  institutional 
acceptance  of  tradition ;  that  the  sanction  of  conduct  is  more 
the  inward  sense  of  responsibility  and  the  application  of  the 
necessary  ways  of  adjusting  means  to  ends.     It  means  that 
there  is  a  greater  respect  for  personality;  that  persons  are 
both   recognized   and   recognize   themselves   as   being   ot   in- 
trinsic value  and  not  merely  the  means  by  which  the  ends 
of   others-kings   or   priests   or   slave   masters-are   achieved, 

30Westermarck,  E.,  The  History  of  Human  Marriage,  vol.  3,  P-  372. 


118 


Marriage  and  Divorce 


or  else  by  which  some  impersonal  and  fantastic  purpose,  the 
'glory'  of  the  tribe  or  even  of  God,  is  supposed  to  be  served. 
It  means  that  caste  is  absent;  that  accidental  or  extrinsic  dif- 
ferences count  for  less;  that  opportunity  is  widened.  It 
means,  therefore,  that  women  are  less  disqualified  because 
of  sex ;  that  the  poor  are  less  dishonored  and  disfranchised 
because  of  poverty  and  the  alien  less  despised  because  of  his 
origin.  It  means  that  life  and  health  are  more  esteemed  and 
guarded.  It  means  that  men  are  less  enslaved  by  the  primary 
necessities  and  so  are  able  to  pursue  the  wider  and  higher 
interests,   which  reveal   themselves  as  the   former  grow   less 

insistent The   likeness   of  all   men  will   be  the   basis   of 

order,  while  their  differences  will  be  suffered  to  express 
themselves,  in  so  far  as  they  are  not  clearly  anti-social, 
and  to  contribute  to  the  whole  that  unique  element  of  worth 
which  resides  in  free  personality,  the  origin  of  all  permanent  gains 
of  civilization."^^ 


-.    ! 


siMacIver,  R.,  Elements  of  Social  Science,  pp.  123-4. 


BIBLIOGRAPHY 


Ainerican-Scandiimvian  Rcviciv,  New  York.     Dec.  1921  and  Jan.  1922. 

Andra  Kammarcns  Protokoll,  nr.  71,  1915 ;  nr.  40,  1920. 

Berdttelsc    over   Landsorganisationens    verksamhet   dr    1920,    avgiven    till 

Reprcsentantskapcts  mote  i  april  1921.     (Page  proofs)    145  p.  A.-B. 

Arbetarnes  Tryckeri.     Stockholm,  1921. 
Ekeberg,    B.,    Aktenskapslagstiftningen.     84    p.     Tryckeriaktieb.     Fylgia. 
Article  in  Aftonbladet.     Februari  20,  1920.     Stockholm,  1915. 
Fackforeningsrorelsen.  I.  Sverge.     264  p.  —  cvi  —  8  diags.     Tidens  forlag. 

Stockholm,   1912. 
Flodstrom,   I.,  Svergcs  folk.     621   p.  Almquist  &  Wicksell.     Uppsala   och 

Stockholm,  1918. 
Fogelquist,    Torsten,    Samhdllspolitik    och    khisspoUtik.     Forum     (Stock- 
holm)  8:37-48,  January,   1922. 
Forsta  Kammarens  Protokoll,  nr.  63,  64,  and  75,  1915;  nr.  28  and  34,  1920. 
Forsta  Lagutskottets  utldtande  nr.  27,  1920. 
Guinchard,  J.,  ed.,  Sweden.     Historical  and  Statistical  Handbook.     Second 

ed.  2  vols.     Norstedt.     Stockholm,  1914. 
Hedren,  T.,  Lagtima  riksdagen  1908.     Kortfattad  uppslagbok.     175  p.  A.- 

B.   Akademiska  bokforlaget.     Uppsala,   1908. 
Howard,  G.  E.,  A  History  of  Matrimonial  Institutions.     3  vols.  Univ.  of 

Chicago  Press.     Chicago,  1904. 
Ktingl.  Maj-.ts  nadiga  proposition  till  riksdagen  med  forslag  till  lag  om 

dktenskaps   ingdende   och   upplosning   m.   m. ;   given   Stockholms  slott 

den  29  januari  191 5.     Bihang  till  riksdagens  protokoll  191 5.     i  saml. 

13  haft.  (nr.  18)  119  p. 
Kyrkolagutskottets  betdnkande  nr.   19,   1915. 
Lagberedningens  forslag  till  revision  av  giftermdlsbalken  och  vissa  delar 

av  drvdabalken. 

I.  Forslag  till  lag  om  dktenskaps  ingdende  och  upplosning  m.  in.  751 

p.  Norstedt.     Stockholm,  1913. 

IV.  Forslag  till  Giftermdlsbalk  m.  m.  722  p.  Norstedt.       Stockholm, 

1918. 
Lagutskottets  utldtande  nr.  ^2,  1900;  nr.  38,  1904;  nr.  32,  1915. 
Linder,  G.,  Kvinnofrdgan  i  Sverige  1845-1905.  59  p.  Wahlstrom  &  Wid- 

strand.     Stockholm,    1905. 
Maciver,  R.,  Elements  of  Social  Science.     186  p.  Methuen.     London,  1921. 
Meyerson,  G.,  Arbeterskornas  vdrld.     172  p.  Geber.     Stockholm,  1917. 
Nordisk    Familjebok.     20    vols.     Gernandt.     Stockholm,    1876-1899. 
Sociala  Meddelande  utgivna  av  Kungl.  Socialstyrelsen,  nr.  i,  1921.     Nor- 
stedt.    Stockholm. 
Stadgar  for  Landsorganisationen  i  Sverge  ....  antagna  i  augusti  191 7. 

22  p.  A.-B.     Arbetarnes  Tryckeri.     Stockholm,   1920. 
Stael  von    Holstein,    M.,    Malsmanskapet    och    kvinnans    sfdllning    inom- 

dktenskapet  enligt  gdllende  svensk  rdtt.     46  p.  A.-B.     Ekmans  forlags- 

exp.     Stockholm,   1908. 


120  Marriage  and  Divorce 


Statistisk  Arsbok  for  Svcrige  1920.     (proof  sheets)  Nortstedt.    Stockholm. 

Stenbeck,  E.,  Den  nya  dktenskapslagen  och  kritiken  ddremot.     Eit  fore- 
drag.     32  p.  Lars  Hokerbergs  forlag.     Stockholm,   1920. 

Stjernstedt,   G.,  Den   svcnska  kvinnans  rdttsliga  stdllning.     81  p.   G.  W. 

Wilhelmson.     Stockholm,    1904.  > 

Svensk  Forfattningssamling,  nr.  480,  481,  and  485,  1915;  nr.  405-434,  1920.  ' 

Sveriges  Rikes  Lag,  till  efterlefnad  stadfdstad  dr  1736  etc.     J.  IV.  Schly-  ' 

ters  ed.     Tredje  up  p  lagan  tit  given  av  F.  O.  Leuhusen.    496  p.  Bihang, 
650  p.  Haeggstrom.     Stockholm,  1886. 

Soderberg,   E.,   Svensk   arbetarrorelse.     Foredrag.     16   p.   A.-B.     Ekmans 
forlagsexp.     Stockholm,   1907. 

Westermarck,  E.,  The  History  of  Human  Marriage.     3  vols.     Macmillan. 
London,  1921. 

Williams,  M.  W.,  Social  Scandinavia  in  the  Viking  Age.     451  p.  Macmil- 
lan.    New  York,  1920. 


•i 

&   i 


APPENDIX 


The  New  Marriage  Law 

The  Marriage  Act  of  June  11,  1920 


Legislation  in  Sxvcdcn  123 


CHAPTER  I. 

Betrothal 

Par.  I.  Betrothal  exists  when  a  man  and  a  woman,  in  the  presence 
of  witnesses,  by  exchanging  rings,  or  otherwise,  have  signified  their  deci- 
sion to  enter  matrimony. 

Par.  2.  If  one  of  the  betrothed  dies,  the  survivor  may  claim  the 
gifts  given  the  deceased  in  view  of  the  marriage  and  yet  keep  the  gifts 
he  himself  has  received. 

If  the  betrothal  is  dissolved,  both  may  demand  the  return  of  their 
respective  gifts.  This  right  does  not  exist  for  the  one,  who  is  principally 
the  cause  of  the  dissolution. 

Par.  3.  If  children  are  conceived  during  the  betrothal  and  this  be- 
trothal later  dissolved  principally  due  to  the  fault  of  the  man,  he  must 
pay  the  woman  reasonable  damages.  Such  damages  may  be  ordered  paid 
in  a  lump  sum  or  in  installments. 

If,  for  any  other  reason,  one  of  the  betrothed  is  principally  to  blame 
for  the  dissolution  of  the  betrothal,  the  other  may  be  adjudged  damages 
only  to  the  extent  of  expenses  incurred  as  a  result  of  actions  taken  in 
view  of  the  intended  marriage. 

Par.  4.  He,  who  according  to  Chapter  2,  paragraphs  2  or  3,  is  for- 
bidden to  marry  without  the  consent  of  parent  or  guardian,  need  not  pay 
damages  as  stated  in  the  second  section  of  paragraph  3,  unless  he  had 
such  consent  to  the  betrothal. 

If  the  man,  in  cases  referred  to  in  section  one,  paragraph  3,  was  un- 
der eighteen  j'ears  of  age  at  the  time  the  child  was  conceived,  he  is  not 
more  liable  for  damages  than  if  no  conception  had  occurred. 

Par.  5.  If  anj'  one  wishes  to  press  claims  on  the  basis  of  paragraphs 
2  and  3,  such  claims  must  be  brought  within  a  year  from  the  time  the  be- 
trothal was  dissolved.  If  a  year  is  allowed  to  elapse,  the  right  to  recover 
damages  is  lost. 

Par.  6.  If  children  are  conceived  during  the  betrothal  or  if  the  par- 
ents become  betrothed  after  the  conception  and  such  betrothal  is  dis- 
solved through  the  death  of  the  man;  and,  if  the  woman  is  in  need  of 
support,  she  may  receive  a  reasonable  part,  though  not  more  than  half, 
of  his  property,  if  she  makes  her  claim  before  the  administrator  of  the 
estate,  the  court,  or  the  judge  within  six  months  after  his  death. 

CHAPTER  2. 

Impediments 

Per.  I.  A  man  under  twenty-one  years  of  age  and  a  woman  under 
eighteen  can  not  marry  without  the  permission  of  the  King. 

Par.  2.  No  one  under  twenty-one  years  of  age,  who  has  not  been 
previously  married,  can  marry  without  the  consent  of   parents. 

If  one  of  the  parents  is  dead,  insane,  feebleminded,  or  without  share 


124 


Marriage  and  Divorce 


in  the  guardianship ;  or,  if  word  can  not  be  had  from  one  of  them  without 
great  delay  or  in  a  roundabout  manner,  the  consent  of  the  other  is  suf- 
.  'fu^j  I  u  f^?'^  conditions  exist  in  regard  to  both  parents,  the  be- 
trothed shall  ask  the  consent  of  his  guardian,  or,  where  a  special  guard- 
ian has  not  been  appointed,  of  some  one  appointed  by  the  court  upon  ap- 
plication, f         1/ 

Par  3.  No  one,  for  whom  a  guardian  has  been  appointed,  can  marry 
without  his  guardian  s  consent. 

Par.  4.  If  consent  is  denied  in  cases  mentioned  in  paragraphs  2  and 
3,  the  court  may  upon  application  permit  the  marriage,  if  it  finds  that 
there  was  no  reason  for  the  denial. 

Par.  5.  An  insane  or  feebleminded  person  cannot  marry 

Par.  6.  A  person  suffering  from  epilepsy,  which  is  mainly  due  to  in- 
ternal causes,  or  venereal  disease,  which  is  in  an  infectious  stage,  can  not 
marry  unless  the  King  finds  reason  to  permit  the  marriage 

Par.  7.  Marriage  is  forbidden  between  persons  in  lineal  descent  or 
ascent  and  between  brother  and  sister. 

Par.  8.  Marriage  between  uncle  and  niece  and  aunt  and  nephew  can 
not  take  place  without  the  King's  permission 

marrfeTtn  fH^"!^^^'  ''  forbidden  between  persons,  one  of  whom  has  been 
married  to  the  other  s  relative  in  directly  ascending  or  descending  line 

^ar.  ID.  No  one  can  remarry,  while  an  eariier  marriage  is  undissolved. 
.  .u     r     ^^o"^^"'  who  has  been  married,  can  not  remarry  within 

ten  months  from  the  dissolution  of  her  earlier  marriage,  unless  it  is 
proved  that  she  is  not  pregnant  from  the  period  before  the  dissolution,  or 
that  ten  months  have  passed,  since  she  cohabited  with  her  husband 

^h\).Tu  ^^A  ."  T^  ^^}^-^  ^""^  '^'  adoptive  parent  can  not  marry, 
while  the  adoptive  relationship  exists. 


CHAPTER  3. 
Publication  of  Banns 

Par.  I.  Banns  shall  be  published  in  the  Swedish  congregation  where 
the  wonian  is  registered,  or,  if  she  neither  is  nor  shoufd  be  registered 
there,  where  she  resides.  icgiaLcicu 

Both  betrothed  shall  apply  for  publication  to  the  minister  in  charge 
of  the  parish  records.  i-nctigc 

h.  if ''''■  •^;  ^T-  ^'  ^'hen  the  man  applies  for  publication,  he  shall,  if 
he  IS  registered  in  some  other  Swedish  parish  than  the  one  mentioned  in 
paragraph  i,  bring  a  transcript  of  his  parish  record  showing  his  quali- 
fications for  the  marriage.  ^ 
no  •  I"  ^^^\3, betrothed  neither  is  nor  should  be  registered  in  a  Swedish 
parish,  he  shall  present  a  corresponding  certificate  from  foreign  reoistrv 
t,..  \u  ^he  parish  record  or  the  above  mentioned  transcript  does 
not  give  the  age  of  the  betrothed,  he  shall  present  other  evidence  in  this 
respect.  If  he  is  under  age,  he  must  prove  that  the  King's  permission  has 
been  given  in  accordance  with  Chapter  2,  paragraph  i. 

_  Sect  3.  If  a  betrothed,  according  to  Chapter  2,  paragraphs  2  and 
3,  IS  not  allowed  to  marry  without  the  consent  of  parents  or  other  guard- 
ian, he  must  show  that  such  consent  has  been  given  or  that  the  court  has 
given  permission  to  the  marriage,  according  to  Chapter  2,  paragraph  4 

i..u}'-'  a'a  f  'f  ""t^'""  ^°  believe  that  the  betrothed  is  insane,  or 

feebleminded;  or,  if  the  betrothed  has  been  insane  within  the  last  thr?e 


Legislation  in  Sweden 


ye,rs  he  shall  show  a  medical  certiSeate  .hat  he  is  not  insane  or  feeble- 

"'"st,.  5.  H  a  betrothed  is  ^""s  "not^ "aff.S'^wi*  etuepsr^Tiniy 

^„f  t=o^'i„r!f^^st^-S?hris^'hrsh"^.  ^pSS-an  ata/av.t  that  he  is 

not  afflicted  with  epilepsy,  as  far  as  he  knows  ^^^  ^^^_ 

Each    betrothed  shall  also    P'«"'  ="„  =f '.,^"'  a"  far  as  he  knows. 

'""Ih^'X^e^Trs'/oTora^-piriA^r^tferpresents  a  Royal  per- 

"'-?:,'rBoS'bX?d^hy'p^9ra«ida^^ 

according  to  Chapter  2,  paragraph  8,  no  reJationsnip 

e.ists,^as  far  a^^^A'^^I^Xd  must  by  affidavit  show  whether  or  no,  he 

""  \Tl  ZZ:S^^  -/"=^-C=.h^aTlt'rrfi'a,"e'  t\  XZ 
Sled'r?h1d'"a.ro'r*e'  s^p^nse°'ortther*?k'he  shali  present  proof 

to  that  effect.  ^orriprl  and  the  parish  record  or  the 

Sect.  8.  If  the  woman  has  been  "^^"^^^  ,^!f^;^that  an  impediment  o£ 
rStTSldln^ChapSTparta^  ifr:  n*t%.ist,  sh^e  shall  pre- 
sent  proof  to  that  effect  ^.^1^  paragraph  2  and  the 

^iniSj-d^oel^S^fi'nn^nrpedi^en.^^^ 

?■o^tVTh"e1r VrU'.^sSer-and'^Srre  that  the  banns  are  pub- 
"-iJlir^nbtS,  *^". -VrlfPf  a^^^n  n.  be  gran.d  pnb- 

•^;^^^hr,a-^=  tS^s3  .^^ 

fa^il^'h^s  ten^''.:;l'ty*at*no  t^^  ?o«rf=n,arriage  f.ists. 
<'^'t"r'6=  ff  TtSr^d  is  .^angerous^^  ill  ,0Vf^*e  ,.an  is  ca,.d  to 
arn,s^aga.ns.^,he^enen,y,  -™f .-ssnt/tfa-be^^othed  Lless  the  one 

he  is  to  marry  gives  his  approval.  ^^  ^^^^ 

this  rule  no  longer  applies. 


126  Marriage  and  Divorce 

.r.A  ^%'a  ^••/'^'"'■^    ^^^"jt^    regulations    regarding    transcripts,    certificates 
and  affidavits,  mentioned  in  this  Chapter,  will  be  made  by  the  King. 

CHAPTER  4. 

The  Ceremony 

mon^'"''  '■  -^^^'''^^^  ''  ^"^^""^^  '"^«  by  means  of  civil  or  religious  cere- 

rv,  ^(^''•.f.  A. '■el'^'ous  ceremony  may  take  place  within  the  Swedish 
Church,  if  both  betrothed  are  members  thereof  or  if  one  is  a  member 
the  other  belonging  to  some  other  Christian  faith;  within  any  other  de- 
nommation,  to  the  ministry  of  which  the  King  has  given  the  right  to  per- 

ifT/d'I^'°"'."'''"''';?^'''^-^°'^-r^''"  "^^^^^'^  of  that  denomination,  or, 
If  the  denomination  is  Christian,  if  one  belongs  to  it  and  the  other  is  a 
member  of  some  other  Christian  faith. 

The  King  may  decree  that  a  member  of  a  foreign  Evangelical  Lu- 
theran denomination  shall  be  given  the  same  right  to  a  relifous  cere- 
mony as  a  member  of  the  Swedish  Church.  reiigious  cere 

Chnrch\t  W  t^he  celebration  of  the  ceremony  within  the  Swedish 
Church,  the  betrothed  may  choose  any  minister  of  the  Church.  No  one 
however  is  duty  bound  to  officiate  except  a  minister  of  the  cong  egadon 
of  which  either  betrothed  is  a  member.  cg<iuon 

Within  other  denominations,  the  ceremony  shall  be  performed  by  a 
duly  authorized  minister  of  the  denomination 

Par.  4.  Regardless  of  the  eligibility  of  the  betrothed  for  a  religious 
ceremony,  a  civil  ceremony  can  be  used.  reugious 

■,^  S^'  ^'P^  following  are  authorized  to  perform  the  civil  ceremony 
chatrmT^f  .h  '"T^'^^  magistrates,  or,  where  such  are  not  found,  "he 
conntv  nr  ^  '!!''  '1^"""'=  '".'^'  ^°""^^y'  ^he  public  prosecutor  o  the 
^Tfin-?'/^"'!  ?'  King  permits  it,  a  special  functionary  appointed  for 
a  definite  district  by  the  Governor.  pp^^mucu  lor 

n.n7^^  t'^\  ""^  T  °^^^'^'   ^^  perform  a  civil   ceremony  does  not   de- 

^       I?"th.V''V^''  ^''^^'  ^^  '"^^  ^^^^°thed  is  a  resident  of  his  district. 

If   the  county  prosecutor  resides   in   a   town,   he  may  also  perform 

"  tTeTetrZed"  ''m  ^°^";  b";  he  is  not  duty  bound  to  do  so  unless  on" 
ot  tne  betrothed  resides  in  his  district. 

Par   6.  If   conditions  mentioned   in   Chapter  3,  paragraph  6    do  not 
exist,  the    ceremony  shall    not  be  performed    unkss  the  publication    o 
banns  has  been  completed.     Even  then  the  celebrant  mav  refuse    ope?- 
oTa  re'rf?/'?°"v'  '^  Kr  ^""^^'^  °^  ^"  impediment  to  the  marriage.     VVith- 

excentiofof  L°l,^  '''"T  T  °"l'^^"  P"^«™  ^  ^^'^'^^^^  with  the 
exception  of  the  minister  who  has  charge  of  the  parish  records  of  the 
parish   where  publication  was  made  recoras  ot   the 

Par.  7.  li    the  betrothed   wish    to  marry  without    previous  publica- 
not"i:e/".H       "'\"'''  '''/^^'^  ^'  P^'-^^'-^Ph  6'  -d  if  the  celebrant  do^s 

IS  etSr  d'in  Yf  Tu^"'  -'V'^'"  ^'  '^^  ^'"^^  °^  ^^e  betrothed,  who 
is  registered  in  a  Swedish  parish,  to  present  a  transcript. 

mcntToned'in  rh''!i''"°"''  ''  Performed,  the  prerequisites  to  publication 
mentioned  in  Chapter  3,  paragraphs  2  and  3,  shall  be  met. 


127 

Legislation  in  Sweden 


Par.  8.  The   ceremony  shall  be  performed   in  the  presence  of  rela- 
tives or  other  witnesses.  betrothed   shall  appear  before 

„i,hin  the   Swedish    Church     the    ^^  ™=i';"^,;  „  „,her  denominations. 
?erre,£ous'Ll;'«r:nd,t 'the  dvire/entony.  the  ™,es  .iven  h.  the 

•^'"Ve  n,i„i_s.er.  who  has  peKonned  ^^^^^^ZTL'^^il.lT^'^^ 
Sr.'h';'d:Tcer:n7X.rhfe";:;ed^in'a  specia,   re.s.e.  acco.d.n, 

to  more  definite  rnles  S"?,",)'-";  *^  ^'i"/-;  „„,  performed  by  an  a.ithor- 
Par.  9.  A  ceremony  shall  be  mvalici  .1  not  P^  different 

ized  minister  or  by  proper  c,v,l  o«='>l  »'  s  Son  wo.  A  ceremony, 
manner  from  the  one  specified  '-/"S'^VVuse  o"  fadnre  to  comply 
however,   shall   not  be   considered   mvahd   ^^f^^^"        ^^^  ,^„eded  his 

CHAPTER  5. 

GENERAL   RULES   ReCARBXNO  THE  LeCAL   RELATIONS   OE   HUSBANO   AND   WiEE 

Par  I  Husband  and  wife  owe  each  other  faithfulness  and  assistance. 
ThefThaU  worl  together  for  ^he  welfare  of  the  fam.ly  ^^^^^^^ 

Par.  2.  With  money  by  f  ^ivity  in  the  home  or  othe  ^^^.^^^^  ^^ 
and  wife  are,  each  accordmg  to  ^'^^^jaity   bound  m  duty  ^^_ 

the  maintenance  of  the  f^^^^^^L^^^^^^.^^  f  ^^.i^en^^^^^^^  which  is  required 

ting  to  their  station  of  hfe^  fu^/home  and  for  the  education  of  the  ch  1- 
^^t.':^.;^^ol^or'Z^:^  needs  of  husband  and  wife, 
shall  be  considered.  cnnn^p    according  to  paragraph  2, 

.rer^s„LVenf.r;rrnij«=^ 

supply  him  w.th  the  "=«'f;7  "'=^''"/,  'j!.,"^^'";  Tspouse,  who  has  shown 
S^r'to 'ha'nX-lney'r  tU^'^Tsom^  o.h^r   reason,   should   no. 

•^^"ta  *:  Tfa-TSln  accordance  -'h  P-graf  s^^^  -^3   has  bee^ 
,i.en  by  ^-,spouse  to  the  other  for  per^^nal^ne^^^^^^       the^.-_;^-  P     P,„| 

to  com  ib^ne".o^h^s"np;ort^f  fhe  family   he  shall.  H^^e  -h.     '-nds 
it,  be  ordered  by  the  conr.  ,'°/^v-«  contr,b.*ons^for^e^P 
"po"nTim'rlhi:h'r'c';u*t\"d:' should  be  entrusted  to  him.  under  .he 

circumstances.  j„^;„o-  tVip  calendar  vear  expended 

Pny   h    Tf  one  of  the  spouses  has  during  tne  caienuar  ^cdi       y 
.„rflor'th"pro"p'er\amte  ance  of  the  fami,,^.han  he  .^ 

»«-i"^I°  ?"!,^:±5s''c,n"^b  -assire/nr  been  intended,  obtain 


or  under  the  circumstances  can  be  ass 


128  Marriage  and  Divorce 

compensation   from   the  other   for   the   amount  of   such   expenses,   which 
may  be  considered  devolving  upon  the  latter. 

Suit  for  recovery  cannot  be  brought  later  than  one  year  after  the 
calendar  year. 

Right  to  compensation  can  only  be  exercised  by  the  one  entitled  to  it, 
neither  can  compensation  be  demanded  in  case  of  the  bankruptcy  of  the' 
one  liable  for  its  payment. 

Par.  7.  If  husband  and  wife  live  apart  on  account  of  dissension  it  is 
nevertheless  the  duty  of  each  to  contribute  to  the  other's  support  on  the 
basis  of  grounds  stated  in  paragraph  2.  If,  however,  one  of  them  is  the 
chief  cause  of  the  rupture,  the  other  is  not  duty  bound  to  assist  in  his 
maintenance  unless  special  reasons  are  found. 

As  to  contributions  to  the  support  of  children  in  cases  referred  to  in 
the  above  section,  the  Law  regarding  Children  in  Marriage  shall  be  fol- 
lowed. 

Par.  8.  In  cases  referred  to  in  paragraph  7,  a  spouse  may,  in  so  far 
as  It  IS  found  reasonable  with  respect  to  the  living  conditions  of  the 
spouses  and  other  circumstances,  be  obliged  to  deliver,  for  the  use  of  the 
other,  chattels,  which,  when  the  separation  occurred,  was  part  of  the 
household  goods  intended  for  the  joint  use  of  the  couple  or  which  con- 
stituted the  tools  of  the  other.  If  property  belonging  to  a  spouse  has  thus 
been  turned  over  to  the  other  for  his  use,  an  agreement,  which  the  owner 
enters  into  with  a  third  person  regarding  said  property,  shall  not  lead  to 
a  limitation  of  the  right  to  its  enjoyment  by  the  other  spouse. 

Par.  9.  In  spite  of  what  the  court  may  have  decided  in  regard  to  con- 
tributions mentioned  in  paragraphs  5  or  7,  the  court  may  change  its  ruling 
on  the  demand  of  either  spouse,  if  essentially  changed  conditions  demand 
it. 

Par.  10.  Agreements  in  questions  referred  to  in  paragraphs  2,  3,  7, 
or  8,  may  be  adjusted  on  the  demand  of  a  spouse,  if  the  agreement  is 
found  to  be  unreasonable  or  if  essentially  changed  conditions  demand  it. 

Par.  II.  Husband  and  wife  are  duty  bound  to  give  each  other  the  in- 
formation regarding  their  financial  circumstances,  which  is  necessary  for 
an  estimate  of  their  respective  obligations  of  maintenance. 

Par.  12.  Either  spouse  may,  for  the  daily  maintenance  of  the  house- 
hold or  the  education  of  the  children,  with  binding  effect  on  the  other, 
enter  into  transactions  such  as  are  customary  for  such  purposes.  Unless' 
It  is  otherwise  apparent  from  circumstances,  these  transactions  shall  be 
considered  made  for  the  purpose  of  binding  both  spouses. 

The  transaction  mentioned  is  not  binding  for  the  other  if  the  one 
with  whom  it  was  entered  into  knew  or  ought  to  have  known  that  that 
which  was  procured  through  it  was  unnecessary. 

The  contents  of  this  paragraph  shall  not  apply  if  husband  and  wife 
live  apart  due  to  dissension. 

For.  13.  If  a  spouse  abuses  the  right  mentioned  in  the  preceding  para- 
graph, he  may  be  deprived  of  the  right  by  the  court,  upon  the  petition  of 
the  other. 

If  changed  conditions  are  proved  to  exist  or  if  the  spouses  mutually 
agree,  the  court  may  revoke  its  decision. 

The  above  decision  by  the  court  shall  immediately  be  reported  by  the 
court  to  the  Alarriage  Registry  and  a  notice  to  that  effect  inserted  in  the 
general  and  local  newspapers. 

Par.  14.  If  one  of  the  spouses,  due  to  absence  or  illness,  is  unable  to 
take  care  of  his  interests  and  has  not  named  an  agent,  or  if  a  guardian  or 


129 
Legislation  in  Sweden 

trustee  has  not  been  appointed  ^^r  him   f  J^^^-  s^^^^^^^  fo^  him. 

when  an  occasion  arises  which  can  "^^  ^^*^^  l^  j"^°,  ^„d  other  income 
poned.  He  may  also  collect  the  ^^^^^l^^^Jf^'^.^^^s^'/orthe  support  of  the 
and,  if  it  is  absolutely  necessary  to  P'^^^^f  .,^'Xr     Real  estate  may  on 

sension.  -^^^  :c  rplphrated    the  wife  shall  accept  her 

Par    m.  When  the  marriage  is  celeDratea,  uic  w 

King. 

CHAPTER  6. 

The  Property  of  Husband  and  Wife 
P„,.  ,.  Each  spouse  has  a  FOpe«y  right  in  .h=  P4oPe;.y. -«*  *= 
other  has  at  the  t.me  the  ™7'>^=  «*«  P'^f,^  ^^"^^  y^       ivate  as  later 
pSvIS  "^Sal'^^opS?-:?  a"'sp-oX?n  ^hiS  The  cther\as  a  property 
-'■'A:^S'rri5htXh'cr;rre  transferred  or  is  othe^^^ 

'""  ?„'"f  A  srou'st"n,ust  manage  his  marital  property  in  such  manner 
that  ft  does  no,  unduly  decrease  to  the  ff  "■"-' °  'fj^f^eM  „al  prop- 

erty- U  r  o^erira^    o    £1^-^^^^^^^^^^^    ^^ 

consented  thereto  in  writing  and  ^"^^he  presence  o  ^^ 

the  latter  is  absent  or  under  guardian,  ^^  ^".yj'^"  ^V^^  ^ho  desires  to 
lii<;  consent      No  special  consent  is  necessary  if  the  spouse  wno  u 
enter  into  such  a  transaction  is  the  "'fefs  guarf,an  or  trus^e  ^ 

Tf  r,  <:nnnse  has  entered  into  a  transaction  as  statea  in  me  y'^ 
secti"  ^iroufgeutng  the  -nsent  necessary    the  transact.on  ,s  .      a      f 

it  is  protested  by  the  other  spouse,  ^'S  f  >5^'»".  "  ^Vf,7£„ed  ot  the 
rra'nsTctL"an7tt",Sr  tt?  aTa^ f ^ ti-^MmT  the  conveyance  or 
■"""S  :Wch"h::teen  stated  in  this  paragraph  regarding  real  property 

^.^  oTtcr-an;!:-:,,  II::  Tp— .h^  rSt;;tfon  or.S 

^^^'%ar    c:    A  spouse  may  not  without  the  other's  consent  dispose  of  or 


130  Marriage  and  Divorce 

just  been  said,  unless  he  is  insane  or  feebleminded.  If  this  is  the  case  or 
if  consent  can  not  be  had  without  considerable  difficulty  or  loss  of  time 
such  consent  shall  be  regarded  as  unnecessary. 

If  a  spouse  has  entered  into  a  transaction  of  the  nature  mentioned 
in  the  first  section  without  necessary  consent  and  if  the  one  with  whom 
the  transaction  was  made  did  not  act  in  good  faith,  the  transaction  shall 
be  invalid,  if  the  other  lodges  a  complaint  within  three  months  from  the 
time  he  received  knowledge  of  the  transaction  and  not  later  than  a  year 
after  the  delivery  of  the  goods. 

Par.  6.  If  consent  is  refused  in  cases  referred  to  in  paragraphs  4  or 
5,  the  court  may  permit  the  transaction  upon  petition,  if  it  is  found  that 
no  ground  for  the  refusal  exists. 

Par.  7.  If  a  spouse  has  intentionally  killed  the  other,  or  if  he,  when 
some  other  committed  the  murder,  had  part  in  the  crime  as  stated  in  the 
criminal  law,  chapter  3,  paragraphs  1-6,  he  shall  lose  his  marital  property 
right  in  the  property  of  the  dead  spouse. 

Par.  8.  Private  property  is: 

property,  which  has  been  declared  private  by  pre-nuptial  or  post-nup- 
tial agreement ; 

property,  which  a  spouse  has  received  as  a  gift  from  some  other  per- 
son than  his  spouse,  on  condition  that  it  remain  private,  or  which  he  has 
received  by  will  on  such  a  condition,  or  which  he  has  inherited,  provided 
that  the  testator  has  by  will  imposed  such  a  condition ; 

that  which  has  been  substituted  for  property  mentioned  above,  unless 
other  provisions  have  been  made  in  the  agreement  which  made  the  prop- 
erty private. 

Income  shall  not,  on  account  of  agreements  mentioned  in  this  para- 
graph, be  private,  unless  special  provisions  to  that  effect  have  been  made 
in  the  agreement. 

Par.  9.  If  husband  and  wife  have  made  an  inventory  of  property  be- 
longing to  each  of  them  and  if  this  inventory  is  signed  by  them  under 
oath  and  accompanied  by  affidavits  by  witnesses  as  to  the  genuineness  of 
the  signatures  and  the  date  thereof,  this  inventory  shall,  in  case  of  dispute 
as  to  the  ownership  of  property,  be  prima  facie  evidence  unless  it  is 
proved  or  on  account  of  special  circumstances  assumed  that  it  is  incor- 
rect. Presumption  of  validity  shall  not,  however,  be  granted  the  inventory 
in  disputes  arising  in  an  execution,  which  takes  place  within  a  year  from 
the  date  of  the  inventory,  or  in  bankruptcy  proceedings,  which  follow  a 
petition  made  within  that  time. 

CHAPTER  7. 
The  Debts  of  Husband  and  Wife 

Par.  I.  Each  spouse  shall  with  his  private  or  marital  property  answer 
for  debts  contracted  by  him  before  or  during  the  marriage. 

Par.  2.  If  debts  have  been  contracted  during  the  marriage  by  the 
spouses  jointly,  they  shall  be  held  jointly  liable  unless  other  agreements 
have  been  made. 

This  provision  shall  also  apply  when  one  spouse  has  contracted  debts 
for  which  the  other  spouse  is  also  responsible,  according  to  chapter  5, 
paragraph   12. 

Par.  3.  If  the  wife  is  jointly  liable  with  her  husband  for  a  debt,  which 
one  or  both  of  them  have  contracted  by  a  transaction  of  the  kind  referred 


Legislation  in  Sweden  131 

to  in  chapter  5,  paragraph  12,  and  if  the  creditor  wants  to  sue  the  wife  for 
the  amount,  he  must  start  proceedings  within  two  years  from  the  day  of 
payment,  or,  if  the  debt  is  to  be  paid  on  demand,  from  the  day  it  was  in- 
curred.    If  this  time  elapses,  the  right  to  sue  her  is  lost. 

If  the  wife  is  adjudged  bankrupt  she  is  not  in  duty  bound  to  satisfy 
a  debt  with  property  acquired  during  or  after  the  bankruptcy,  if  the  debt 
was  made  previous  to  the  bankruptcy  and  is  of  the  nature  mentioned  in 
section  one. 

Par.  4.  When  on  account  of  separation  of  property,  separation,  or 
divorce,  a  division  of  property  has  taken  place,  the  wife  shall  be  respon- 
sible for  debts,  as  mentioned  in  paragraph  3,  which  have  been  incurred  be- 
fore the  petition  for  the  separation  of  property,  separation,  or  divorce, 
only  to  the  value  of  the  private  property,  which  she  owned,  when  said 
petition  was  made,  the  separation  secured,  or  the  marriage  dissolved,  and 
the  property,  which  was  given  her  at  the  division.  If,  as  a  resvdt  of  the 
separation  or  the  dissolution  of  the  marriage,  division  of  property  is  not 
to  take  place,  the  wife  shall,  after  the  separation  or  the  dissolution  of  the 
marriage,  be  responsible  for  debt  above  mentioned  only  to  the  extent  of 
the  value  of  the  property  she  possessed,  when  the  separation  was  se- 
cured or  the  marriage  was  dissolved. 

If  property,  mentioned  in  the  above  section,  is  subject  to  mortgage  or 
is  otherwise  security  for  some  debt  not  referred  to  above,  a  part  of  the 
value  of  the  property,  corresponding  to  the  amount  of  the  debt,  shall  be 
left  out  of  consideration. 

Par.  5.  That  which  has  been  provided  in  paragraphs  3  and  4  shall 
not  apply  if  the  wife  has  accepted  more  extensive  responsibility  for  pay- 
ment. 

CHAPTER  8. 

Pre-nuptial  and  Other  Legal  Agreements  Between  Spouses 

Par.  I.  Betrothed  or  spouses  may  by  means  of  pre-nuptial  or  post- 
nuptial agreements  decide  that  property,  which  belongs  to  or  becomes  the 
property  of  one  of  them  and  which  would  normally  be  his  marital  prop- 
erty, shall  be  his  private  property.  Through  such  agreements  it  may  also 
be  settled  that  property,  which  would  otherwise  be  the  private  property  of 
one  of  them,  shall  be  his  marital  property,  unless  it  is  otherwise  under- 
stood from  chapter  6,  paragraph  8,  section  2. 

Except  as  to  what  is  above  stated,  no  agreements  between  spouses 
shall  deviate  from  the  contents  of  this  law  regarding  the  property  rights 
of  spouses. 

Par.  2.  If  one  of  the  betrothed  wishes  to  give  the  other  property, 
which  is  to  become  the  property  of  the  latter  at  the  time  of  the  marriage, 
or  if  one  spouse  wishes  to  make  such  a  gift  to  the  other,  an  agreement 
must  be  drawn  up.  Such  an  agreement,  however,  shall  be  unnecessary, 
when  it  is  a  question  of  ordinary  gifts,  the  value  of  which  harmonizes 
with  the  giver's  status  in  life. 

A  promise  by  a  betrothed  or  a  spouse  to  give  the  other  money  or  other 
things  during  the  marriage  shall  not  be  binding  unless  compensation  is 
made,  even  though  a  written  agreement  is  entered  into. 

Par.  3.  A  spouse,  whose  income  during  the  calendar  year  has  created 
a  surplus,  may,  without  agreement  or  compensation  and  before  the  ex- 
piration of  the  following  year,  give  the  other  property  not  exceeding  the 
value  of  half  of  the  surplus  mentioned.  Such  transfer,  however,  shall  not 
be  valid  against  creditors  unless  the  giver  had  sufficient  property  left  to 


132  Marriage  and  Divorce 

pay  the  debts  and  a  written  and  duly  witnessed  document  has  been  pre- 
pared, in  which  the  amount  of  the  surpUis  is  stated. 

Par.  4.  If  the  spouses  have,  without  drawing  up  an  agreement,  agreed 
between  themselves  as  to  the  transfer  of  property,  such  an  agreement  can 
not  protect  a  spouse  against  creditors,  unless  it  can  be  shown  or  bj'  cir- 
cumstances inferred  that  the  agreement  was  of  a  nature  not  requiring  a 
written  form  to  be  valid. 

Par.  5.  If  a  gift  has  been  made,  as  in  paragraph  2,  and  if  it  is  not  of 
the  nature  mentioned  in  the  second  part  of  the  first  section  of  the  para- 
graph mentioned,  and  if  a  debt,  which  the  donor  owed  when  this  gift  was 
made,  in  accordance  with  paragraph  12,  cannot  be  paid  by  him,  the  other 
spouse  shall  contribute  to  its  payment  to  the  value  of  the  transferred  prop- 
erty, unless  he  can  prove  that  the  donor  had  enough  property  left  at  the 
time  to  satisfy  his  debt.  If  compensation  has  been  made,  its  amount  shall 
be  subtracted  from  the  value  of  the  transferred  property.  If  the  latter 
has  been  entirely  or  partly  lost  due  to  no  fault  of  the  receiver,  he  shall 
be  correspondingly  relieved  of  responsibility. 

If  the  donor  has  become  bankrupt  or  has  at  the  time  of  an  execution 
been  found  incapable  of  paying  his  debts,  or  if  he,  being  a  merchant,  has 
stopped  payments,  or  if  he  is  in  other  respects  in  such  a  precarious  posi- 
tion that  it  may  be  feared  that  debts  of  the  kind  mentioned  in  the  first 
section  above  cannot  be  paid  in  full,  the  other  spouse  shall  be  held  re- 
sponsible for  the  debts  to  the  amount  mentioned  in  the  above  section, 
even  though  the  financial  condition  of  the  donor  may  not  be  ascertained. 

If  a  suit  is  pending  for  the  restitution  of  the  gift  to  the  donor's  estate 
in  bankruptcy,  the  responsibility  of  the  recipient,  according  to  this  para- 
graph, shall  not  be  asserted. 

Par.  6.  If  one  spouse  aids  the  other  in  the  latter's  business,  he  shall, 
even  if  no  agreement  as  to  compensation  has  been  entered  into,  receive  a 
reasonable  pay  for  his  labor,  if  it,  in  consideration  of  the  nature  of  the 
work  and  other  circumstances,  shall  be  deemed  just  that  compensation 
should  be  made. 

If  a  claim  for  the  compensation  of  such  labor  has  not  been  made  be- 
fore the  end  of  the  calendar  year  following  that  during  which  the  work 
was  performed,  the  right  to  claim  compensation  shall  be  forfeited,  unless 
there  is  an  agreement  to  the  contrary. 

Par.  7.  If  the  property  of  a  spouse  has  been  given  to  the  other  for 
management  and  if  the  spouses  have  agreed,  or  if  the  circumstances  indicate 
that  their  intentions  were,  that  the  manager  should  have  the  right  to  use 
the  income  thereof  for  the  support  of  the  family,  the  latter's  word  shall, 
in  case  of  disagreement  as  to  the  amount  used  for  that  purpose,  be  taken 
unless  circumstances  indicate  differently. 

If  a  spouse  who  has  entrusted  property  to  the  other  for  management 
has  agreed  to  relinquish  his  right  to  withdraw  this  property  at  his  pleas- 
ure, such  agreement  shall  not  be  binding. 

Par.  8.  Agreements  concerning  the  duty  of  a  spouse  to  support  the 
other,  certain  agreements  concerning  impending  separation  or  dissolu- 
tion of  the  marriage,  and  ajgreements  concerning  separation  of  property  or 
anything  connected  therewith,  are  dealt  with  in  chapters  5,  11,  and  13. 

Par.  9.  Although  still  a  minor,  a  betrothed  or  a  spouse  may  make 
pre-  or  post-nuptial  agreements.  He  should,  however,  get  the  consent  of 
his  guardian,  unless  it  concerns  the  transfer  of  property,  which  he  himself 
controls. 

The  same  shall  be  true  of  transfer  of  the  nature  referred  to  in  para- 
graph 3.    What  said  paragraph  rules  as  to  conditions  making  the  transfer 


Legislation  in  Sweden  133 

valid  against  creditors,  shall  also  apply  to  the  consent  of  the  guardian  as 
to  the  transfer. 

Par.  ID.  Pre-nuptial  or  post-nuptial  agreements  shall  be  drawn  up 
in  written  form  by  the  spouses  or  the  betrothed  and  shall  be  duly  attested 
by  witnesses.  If  the  consent  of  the  guardian  is  necessary,  it  shall  be  given 
as  hereinbefore  provided. 

Par.  II.  Such  agreements  shall  be  filed  in  the  court  in  the  place, 
where  the  husband  should  answer  in  suits  against  his  person,  or,  if  the 
husband  is  not  duty  bound  to  answer  in  such  suits  before  a  Swedish  court, 
to  the  court  before  which  his  wife  should  answer  in  such  suits.  If  no 
court  of  the  nature  stated  exists,  the  agreement  shall  be  filed  in  the  Mag- 
istrate's Court  in  Stockholm. 

The  court  shall  enter  the  agreement  in  its  minutes  and  shall  immedi- 
ately send  a  copy  thereof  to  the  authority  in  charge  of  the  Marriage  reg- 
istry together  with  information  of  the  date  the  agreement  was  filed  in 
the  court.  In  cases  referred  to  in  paragraph  2,  a  notice  of  the  filing 
shall  also  be  published  in  the  local  and  general  newspapers. 

If  the  agreement  does  not  contain  complete  information  regarding 
the  names,  occupations,  and  residence  of  the  spouses,  the  court  shall  call 
for  such  information  and  send  it  to  the  registry  mentioned. 

If  a  certified  copy  of  the  agreement  is  not  filed  in  the  court,  the  court 
shall,  at  the  expense  of  the  applicant,  prepare  such  a  copy. 

Par.  12.  If  a  prenuptial  agreement  has  been  made  by  the  betrothed, 
it  shall  be  valid  from  the  day  of  the  wedding,  if  it  is  filed  in  the  court 
within  a  month,  if  in  the  city,  or  to  the  session  following  the  month  of 
the  wedding  at  the  latest,  if  in  the  country.  In  other  cases  the  agreement 
shall  be  valid  from  the  date  of  its  filing  in  the  court. 

CHAPTER  9. 

The  Separation  of  Property 

Par.  I.  Upon  application,  a  spouse  may  gain  separation  of  the  property 

1.  if  the  other,  through  mismanagement  of  his  financial  affairs, 
through  abuse  of  his  right  to  control  his  marital  property,  or  through 
other  improper  conduct  causes  a  material  decrease  in  his  marital  property 
or  causes  a  danger  of  such  decrease,  and 

2.  if  the  property  of  the  other  spouse  has  been  surrendered  to  credi- 
tors. 

Par.  2.  Husband  and  wife  can  also  gain  separation  of  property  upon 
mutual  agreement. 

Par.  3.  All  property  acquired  by  a  spouse  after  the  petition  for  sep- 
aration of  the  property  has  been  made,  shall  be  his  private  property,  if 
his  petition  is  granted. 

Par.  4.  When  separation  of  the  property  has  been  granted,  a  division 
of  the  property  shall  take  place  and  all  property  falling  to  the  share  of  a 
spouse  shall  thereafter  be  his  private  property. 

Par.  5.  Until  the  division  of  the  property  takes  place,  each  spouse 
may,  unless  it  is  otherwise  arranged  according  to  paragraph  6,  continue 
to  manage  the  marital  property,  which  belonged  to  him  when  the  petition 
for  separation  was  made.  When  the  division  takes  place,  the  spouse  shall 
be  in  duty  bound  to  render  an  accounting  of  his  management  of  this  prop- 
erty and  of  the  income  accruing  from  it. 

Par.  6.  If  separation  of  property  has  been  applied  for  and  if,  when 
the  petition  has  been  made  by  one  spouse  alone,  sufficient  cause  is  shown, 


134  Marriage  and  Divorce 

marital  property,  which  the  other  may  according  to  paragraph  5  control, 
shall,  upon  the  petition  of  the  former  and  if  it  is  found  necessary  for  the 
protection  of  his  interests,  to  the  value  of  what  would  be  deemed  the 
petitioner's  share  at  the  division  of  the  property,  be  placed  under  special 
management  until  the  petition  for  the  separation  of  the  property  has  been 
heard  and,  if  it  is  granted,  the  property  has  been  divided,  or  until  the  said 
petition  has  been  refused.  Such  withdrawal  shall,  however,  not  be  made 
if  the  other  spouse  objects  and  gives  security,  approved  by  the  court,  for 
the  share,  which  would  fall  to  the  petitioner  at  the  division.  If  separa- 
tion of  property  has  been  granted,  either  spouse  may,  according  to  what 
has  just  been  said,  demand  that  that  marital  property,  which  the  other 
manages,  be  placed  under  special  administration  until  the  division  has  been 
made. 

When  the  above  arrangement  is  made,  more  definite  rules  may  also 
be  given  regarding  the  use  of  the  property  or  its  income  for  the  support 
of  the  family  or  for  other  necessary  expenses. 

Par.  7.  Marital  property,  which  a  spouse,  according  to  paragraph  5, 
has  a  right  to  cotnrol,  may  without  hindrance  from  a  pending  petition  for 
the  separation  of  property  or  a  court  decree  of  such  separation,  be  seized 
in  payment  for  debts.  If  such  property,  according  to  paragraph  6,  is 
placed  under  a  special  administrator,  it  shall  not  be  seized  unless  the 
other  spouse  is  jointly  liable  for  the  debt  or  unless  the  property,  due  to 
mortgage  or  other  reason,  is  security  for  its  payment. 

Par.  8.  If  the  property  of  a  spouse  is  surrendered  to  his  creditors  be- 
fore the  division  takes  place,  or  if  such  division  has  been  annulled  on  ac- 
count of  the  bankruptcy  of  a  spouse,  the  marital  property,  which  a  spouse 
has  the  right  to  control,  according  to  paragraph  5,  shall  be  managed  by 
the  receiver  until,  by  division  of  the  property,  it  is  decided  how  much  shall 
fall  to  the  share  of  the  spouse.  If  it  is  found  necessary,  the  receiver  may 
sell  the  property  without  hindrance. 

In  the  case  of  bankruptcy,  the  rules  in  paragraph  6  are  inapplicable. 

Par.  9.  If  during  the  suit  for  separation  of  property  no  inventory  has 
been  made  of  the  husband's  and  the  wife's  assets  and  liabilities  as  they 
existed  at  the  time  the  petition  for  separation  of  property  was  made,  such 
an  inventory-  shall  be  prepared  when  the  separation  has  been  granted.  This 
inventory  shall  be  signed  by  the  spouses  under  oath  and  a  copy  filed  in  the 
court  or  presented  to  the  judge. 

If  a  copy  of  the  inventor}'  has  not  been  filed  within  three  months  of 
the  date  the  separation  of  property  was  decreed,  the  court  or  the  judge 
shall  appoint  a  magistrate,  a  sheriff,  a  tipstaff,  or  some  other  suitable  per- 
son to  make  the  inventory,  in  which  case  the  spouse  is  required  under 
oath  to  give  honest  information  concerning  his  assets  and  liabilities.  The 
appraiser  must  send  a  copy  of  the  inventory  to  the  court  or  to  the  judge. 

If  separation  of  property  has  been  applied  for  and  if,  in  case  the 
petition  has  been  made  by  one  spouse  alone,  sufficient  cause  is  shown,  the 
court  or  the  judge  shall,  upon  the  petition  of  a  spouse,  order  an  inventory 
to  be  made  in  accordance  with  what  has  been  previously  stated  in  this 
paragraph.  The  appraiser  shall  present  to  both  husband  and  wife  copies 
of  the  inventory  and  shall  also  send  a  copy  to  the  court  or  to  the  judge 
together  with  information  as  to  the  date  when  he  presented  the  copies 
to  the  spouses. 

A  spouse  must,  before  the  court  and  by  oath,  confirm  the  accuracy  of 
the  inventory,  if  the  other  demands  it,  or  if  the  demand  is  made  by  a 
creditor,  whose  claim  antedates  the  division  of  the  property. 


Legislation  in  Sweden  135 

CHAPTER  10. 

The  Annulment  of  the  Marriage 

Par.  I.  If  a  marriage  has  been  entered  into  in  spite  of  impediments 
mentioned  in  chapter  2,  paragraphs  7,  9,  or  10,  an  annulment  shall  be  de- 
creed. 

For  impediments,  mentioned  in  chapter  2,  paragraph  10,  no  annulment 
shall  be  decreed,  if  the  earlier  marriage  has  been  dissolved  before  a  peti- 
tion for  annulment  was  made. 

It  is  the  duty  of  the  public  prosecutor  to  demand  the  annulment  of  a 
marriage.  Either  spouse,  as  well  as  the  earlier  spouse  of  the  one  who 
remarried,  may  institute  proceedings  for  annulment  in  case  of  impediment 
mentioned  in  chapter  2,  paragraph   10. 

Par.  2.  If  a  spouse  was,  at  the  time  of  the  marriage,  insane  or  feeble- 
minded, the  marriage  may  be  annulled  on  his  petition.  If  he  has  not  made 
his  petition  within  six  months  from  the  time  his  illness  was  cured,  his 
right  shall  be  forfeited. 

If  the  other  did  not,  at  the  time  of  the  wedding,  know  of  the  insanity 
or  the  feeblemindedness,  he  too  may  secure  annulment,  if  he  petitions  for 
it  within  six  months  from  the  date  he  learned  of  it  and  not  later  than 
three  years  after  the  marriage.  Annulment  on  the  ground  of  insanity 
can  not  be  pleaded,  when  the  illness  has  been  cured. 

Par.  3.  A  marriage  can  also  be  annulled  upon  the  petition  of  a  spouse, 

1.  if  he,  at  the  time  of  the  marriage,  was  momentarily  out  of  his  mind 
or  in  some  other  condition  which  precluded  the  possibility  of  legal  re- 
sponsibility; 

2.  if  he  by  mistake  was  married  to  some  other  person  than  his  be- 
trothed or  did  not  desire  to  enter  into  marriage ; 

3.  if  unknown  to  him  the  other  was,  at  the  time  of  the  marriage,  suf- 
fering from  epilepsy,  mainly  traceable  to  internal  causes,  venereal  disease 
in  an  infectious  stage,  or  leprosy,  or  was  incurably  disabled  for  marriage ; 

4.  if  he  was  deceived  into  marriage  by  false  statements  or  fraudulent 
concealment  by  the  other  as  to  his  identity  or  such  circumstances  af- 
fecting his  earlier  life,  which  would  have  been  reasonably  certain  to  deter 
the  former  from  entering  into  the  marriage. 

5.  if  he  was  forced  into  the  marriage. 

Annulment  can  not  be  secured,  unless  the  spouse  petitions  for  it  with- 
in six  months  from  the  time  the  condition  mentioned  in  I  ceased  or  he 
received  knowledge  of  the  reasons  for  annulment  mentioned  in  2,  3,  or  4, 
or  became  free  from  the  compulsion  referred  to  in  5.  No  petition  for 
annulment  shall  be  considered  if  made  more  than  three  years  after  the 
marriage. 

Petition  for  annulment  may  not  be  made  on  the  ground  of  venereal 
disease,  if  the  spouse  has  not  been  infected  or  if  the  disease  is  no  longer 
in  the  infectious  stage,  or  on  the  ground  of  some  other  illness,  after  it  has 
been  cured. 

Par.  4.  The  effects  of  an  annulment  shall  be  the  same  as  those  pre- 
scribed in  case  of  divorce,  unless  it  is  hereinafter  otherwise  provided. 

What  has  been  stated  in  chapter  11,  paragraph  20,  for  cases  under 
consideration  there,  as  to  the  preparation  of  an  inventory  of  the  assets 
and  liabilities  of  each  spouse  and  the  confirmation  by  oath  of  such  inven- 
tory, shall  have  corresponding  application,  when  a  suit  for  annulment  is 
pending  or  when  an  annulment  has  been  decreed. 

Par.  5.  When  a  marriage  has  been  annulled,  property,  which  a  spouse 
had  at  the  time  of  the  marriage  or  has  acquired  later  through  inheritance, 


136  Marriage  and  Divorce 

gift,  or  will,  shall  be  considered  as  his  private  property,  when  a  division 
of  the  property  is  made. 

Par.  6.  If  annulment  takes  place  in  accordance  with  paragraph  one 
and  it  appears  that  one  but  not  the  other  of  the  spouses  was  acting  in  good 
faith,  the  former  shall  have  the  right  to  damages,  in  accordance  with  what 
is  proved  reasonable  considering  the  financial  and  other  circumstances  of 
the  two. 

If  a  spouse  secures  annulment  according  to  paragraph  2,  section  i,  or 
paragraph  3,  and  if  the  circumstance  leading  to  the  annulment  was,  at 
the  time  of  the  marriage,  known  to  the  other,  the  one  on  whose  petition 
the  marriage  is  annulled,  has  a  right  to  damages  as  has  just  been  men- 
tioned. 

Damages  may  be  ordered  paid  in  a  lump  sum  or  in  installments. 

A  demand  for  damages  shall,  on  pain  of  forfeiture  of  same,  be  made  in 
the  suit  for  annulment,  unless  it  is  merely  a  question  of  the  adjustment 
of  an  agreement,  which  the  spouses  may  have  entered  into  in  view  of  the 
annulment. 

Par.  7.  After  the  annulment  the  spouses  are  no  longer  in  duty  bound 
to  support  each  other. 

Par.  8.  If  a  marriage  is  annulled  according  to  paragraph  one  and  the 
husband  at  the  time  of  the  marriage  acted  in  good  faith,  but  not  the  wife, 
or  if  the  husband  secures  annulment  according  to  paragraph  2,  section  one, 
or  paragraph  3,  and  if  the  circumstance  leading  to  the  annulment  was 
known  to  the  wife  at  the  time  of  the  marriage,  she  shall,  if  the  man  so 
asks,  be  forbidden  the  future  use  of  his  name. 

Par.  9.  If,  by  the  death  of  a  spouse,  a  marriage  is  dissolved,  which 
should  have  been  annulled  according  to  paragraph  one,  the  marital  prop- 
erty shall  be  divided  as  if  an  annulment  had  taken  place,  if  the  demand  is 
made  not  later  than  at  the  division  of  the  property. 

The  same  holds  if  a  marriage,  which  could  be  annulled  according  to 
paragraphs  2  or  3,  is  dissolved  by  death  and  the  application  of  rules  just 
mentioned  is  asked  for  by  the  surviving  spouse,  if  he  had  a  right  to  the 
annulment,  or  by  some  other  part  owner  of  the  estate,  if  the  deceased  had 
such  a  right  and  had  instituted  proceedings  for  annulment  or  was  until 
his  death  in  the  condition  mentioned  in  paragraph  2  or  in  paragraph  3, 
section  i. 

Par.  10.  A  surviving  spouse,  who  at  the  time  of  the  other's  death, 
had  a  right  to  annulment,  may  receive  damages  according  to  regulations 
in  paragraph  6  if  he  demands  it  before  or  at  the  division  of  the  property. 

Par.  II.  If  a  marriage  should  have  been  annulled  because  of  impedi- 
ment mentioned  in  chapter  2,  paragraph  10,  and  the  remarried  one  dies, 
right  to  compensation,  pension,  or  other  financial  privilege,  which  is  given 
to  the  surviving  spouse,  shall  be  regarded  as  belonging  to  the  spouse  of 
the  earlier  marriage,  unless  it  otherwise  appears  from  the  circumstances. 

CHAPTER  II. 
Separation  and  Divorce 

Par.  I.  Husband  and  wife,  who,  on  account  of  deep  and  constant  dis- 
cord, are  unable  to  continue  their  marital  existence,  may  secure  a  court 
order  for  separation  upon  mutual  agreement. 

Par.  2.  If  a  spouse  is  guilty  of  flagrant  neglect  of  his  duty  to  support 
the  other  and  the  children,  or  if  he  otherwise  ignores  his  duties  toward 
them  in  a  palpable  manner,  or  if  he  is  addicted  to  the  misuse  of  intoxi- 
cants or  is  leading  a  vicious  life,  the  other  may  secure  separation,  unless 


Legislation  in  Sweden  137 

with  regard  to  the  latter's  own  behavior  or  other  special  circumstances  it 
can  be  required  that  he  continue  the  relationship. 

If  due  to  a  difference  in  temperament  and  ideas  or  to  other  reasons, 
a  deep  and  lasting  discord  has  arisen  between  the  spouses,  and  if  one  of 
them  desires  separation,  he  shall  be  entitled  to  it  unless,  with  regard  to 
his  own  conduct  or  other  special  circumstances  it  can  be  reasonably  re- 
quired that  he  continue  the  relationship. 

Par.  3.  If  the  spouses,  after  having  secured  separation,  have  lived 
apart  for  a  year  and  their  marital  relationship  is  not  resumed,  a  decree 
of  divorce  can  be  issued  upon  the  petition  of  either  spouse. 

Par.  4.  If  husband  and  wife,  without  decree  of  separation,  on  account 
of  discord  have  lived  apart  for  three  years,  either  may  receive  divorce. 
If  only  one  of  them  desires  it  and,  on  account  of  his  conduct  or  other 
special  circumstances  it  is  found  that  the  marriage  should  not  be  dissolved 
upon  his  petition,  a  decree  shall  not  be  granted. 

Par.  5.  If  a  spouse  has  wilfully  and  for  no  valid  reason  withdrawn 
from  the  marital  relationship  for  two  years  and  has  not  resumed  it,  the 
other  has  a  ground  for  divorce. 

Par.  6.  If  a  spouse  is  absent  and  it  is  not  known  that  he  has  been  alive 
for  the  last  three  years,  the  other  may  receive  a  divorce. 

Par.  7.  If  a  spouse,  contrary  to  chapter  2,  paragraph  10,  has  remar- 
ried, the  other  may  receive  a  divorce,  if  he  petitions  for  it  within  six 
months  from  the  date  he  learned  of  the  new  marriage. 

Par.  8.  If  a  spouse  commits  adultery  or  other  punishable  fornication, 
the  other  has  a  right  to  a  divorce  unless  he  had  part  in  the  deed  or  gave 
his  consent  to  it.  He  must  institute  proceedings,  however,  within  six 
months  from  the  date  he  learned  of  the  deed  and  not  later  than  three  years 
from  its  occurrence  or  his  right  to  so  plead  is  forfeited. 

Par.  9.  If  a  spouse,  who  is  suffering  from  venereal  disease  in  an  in- 
fectious stage  and  knows  or  suspects  his  condition,  has  through  cohabita- 
tion exposed  the  other  to  infection,  the  latter  has  a  right  to  divorce  unless 
he  permitted  the  exposure  with  knowledge  of  the  danger.  No  petition 
for  divorce  shall  be  granted,  however,  unless  made  within  six  months 
from  the  date  the  petitioner  learned  that  he  had  been  exposed  to  the 
danger  of  infection,  nor  shall  it  be  granted  if  infection  did  not  result  and 
the  disease  is  no  longer  in  an  infectious  stage  when  the  petition  is  made. 

Par.  10.  If  a  spouse  plots  against  the  other's  life  or  subjects  him  to 
severe  physical  maltreatment,  the  latter  has  a  right  to  a  divorce,  if  he 
petitions  for  it  within  six  months  from  the  date  he  learned  of  the  matter 
and  not  later  than  three  years  after  its  occurrence. 

Par.  II.  If  a  spouse  is  sentenced  to  hard  labor  for  three  years  or  to 
some  more  severe  punishment,  the  other  has  a  right  to  divorce. 

If  a  spouse  is  sentenced  to  hard  labor  for  a  definite  period  shorter 
than  three  years  or  to  prison  or  workhouse  for  at  least  one  year,  and  the 
other  asks  for  divorce,  the  court  shall  investigate  whether  or  not  a  divorce 
should  be  granted,  considering  the  prisoner's  faults.  This  rule  shall  also 
hold  in  cases  where  a  foreign  court  has  imposed  a  one-year  prison  sen- 
tence on  a  spouse,  as  a  result  of  which  the  other  desires  a  divorce. 

A  sentence  for  crime  shall  not  constitute  a  ground  for  divorce  for  a 
petitioner  who  consented  to  the  crime  or  acted  as  an  accomplice. 

If  a  spouse  desires  a  divorce  on  grounds  mentioned  in  this  paragraph, 
the  petition  must  be  made  within  six  months  after  learning  of  the  sentence 
and  not  later  than  three  years  from  the  date  the  sentence  was  imposed. 

Par.  12.  If  a  spouse  is  an  immoderate  user  of  intoxicants,  the  other 
may  get  a  divorce  if  the  court  finds  special  reasons  to  grant  it. 

Par.  13.   If  a  spouse  is  insane  and  the  insanity  has  been  continuous 


138  Marriage  and  Divorce 

for  three  j-ears  of  the  marital  life  and  there  is  no  hope  for  permanent 
recovery,  the  other  may  he  given  a  divorce. 

Par.  14.  All  property  acquired  by  a  spouse  after  separation  has  been 
granted  is  his  private  property. 

Par.  15.  When  separation  has  been  decreed,  division  of  the  property 
shall  take  place  and  whatever  property  is  then  given  to  a  spouse  becomes 
his  private  property. 

Par.  16.  Until  a  division  of  the  property  is  made,  each  spouse  may, 
unless  otherwise  stated  in  paragraph  17,  continue  to  control  the  marital 
property  he  owned  when  the  separation  was  granted.  When  the  division 
is  made,  he  shall  be  in  duty  bound  to  render  an  accounting  of  his  manage- 
ment of  this  property  and  the  income  which  it  has  yielded. 

Par.  17.  If  either  spouse  requests  it  and  it  is  found  necessary  for  the 
protection  of  his  rights,  marital  property,  which  the  other  according  to 
paragraph  16  has  the  right  to  control,  shall,  to  the  value  corresponding 
to  what  is  expected  that  the  division  of  the  property  shall  yield  the  peti- 
tioner, be  placed  under  special  management  until  the  division  has  been 
made.  This  segregation  shall  not  take  place  if  the  other  objects  and  gives 
security,  approved  by  the  court,  for  such  property,  as  may  fall  to  the 
petitioner  at  the  time  of  the  division. 

When  the  above  arrangement  is  made,  more  definite  rules  shall  be 
given  for  the  use  of  the  property  and  its  income  for  the  support  of  the 
famih''  or  for  other  necessary  expenses. 

Par.  18.  Marital  property,  which  a  spouse,  according  to  paragraph  16, 
has  a  right  to  control,  may,  without  hindrance  from  a  separation  decree, 
be  seized  for  his  debt.  If  such  property  is,  according  to  paragraph  17, 
placed  under  special  management,  it  may  not,  however,  be  thus  seized 
unless  the  other  spouse  is  jointly  Uable  for  the  payment  of  the  debt  or 
the  property  specially  secures  the  payment  of  the  debt,  due  to  mortgage 
or  other  reason. 

Par.  19.  If  the  property  of  a  spouse  is  surrendered  in  bankruptcy 
before  the  division  of  the  estate  is  made,  or  if  the  division  has  been  an- 
nulled due  to  bankruptcy  proceedings  against  the  spouse,  the  marital 
property  which,  according  to  paragraph  16,  may  be  controlled  by  the  other, 
shall  be  managed  by  the  receiver  in  the  bankruptcy  proceedings  until,  at 
the  division  of  the  property,  it  is  decided  what  is  to  fall  to  his  share.  If 
it  is  found  necessary,  the  receiver  may  sell  the  property  without  hindrance. 
If  bankruptcy  proceedings  are  instituted,  disposition  of  the  property, 
according  to  paragraph  17,  shall  be  nullified. 

Par.  20.  If  during  the  separation  proceedings  no  inventory  has  been 
made  of  the  assets  and  liabilities  of  the  spouses,  such  an  inventory  shall 
be  prepared  after  the  separation  has  been  decreed.  It  shall  be  signed 
under  oath  by  both  spouses  and  a  copy  thereof  given  to  the  court  or  to 
the  judge. 

If  this  copy  has  not  been  filed  within  three  months  from  the  date 
of  the  separation  decree,  the  court  or  the  judge  shall  appoint  a  magistrate, 
sheriff,  tipstaff,  or  other  suitable  person  to  make  the  inventory,  in  which 
case  the  spouses  are  required  under  oath  to  gi\c  honest  information  as  to 
assets  and  liabilities.  The  appraiser  shall  send  a  copy  of  the  inventory 
to  the  court  or  the  judge. 

If  a  petition  for  separation  has  been  made  and  if,  in  case  the  peti- 
tion is  made  by  the  spouse  alone,  it  can  be  reasonably  supported,  the  court 
or  the  judge  may,  upon  the  petition  of  one  of  the  spouses,  order  an  inven- 
tory made,  according  to  provisions  made  earlier  in  this  paragraph.  The 
appraiser  shall  send  a  copy  of  the  inventory  to  the  court  or  to  the  judge. 
The  spouse  must  under  oath  attest  the  accuracy  of  the  inventory  be- 


Legislation  in  Sweden  139 

fore  the  court,  if  the  other  demands  it  or  if  the  demand  is  made  by  a 
creditor  whose  claim  antedates  the  division  of  the  estate. 

Far.  21.  The  provisions  of  paragraphs  15-20  shall  not  hold  if  neither 
spouse  has  any  marital  property  due  to  separation  of  the  property  or  to 
pre-nuptial  or  post-nuptial  agreements. 

Par.  22.  If  a  spouse  gains  separation  according  to  paragraph  2,  sec- 
tion one,  and  if  the  property  due  him  at  the  division  of  the  estate  is  slight, 
the  court  may,  on  his  petition,  authorize  him  to  remove  from  the  marital 
property,  when  the  division  is  made,  necessary  household  goods  as  well  as 
tools  and  other  chattels,  which  are  needed  for  the  continued  pursuit  of 
his  occupation,  even  if  by  so  doing  the  other's  share  may  suffer  shortage. 
What  is  here  provided  shall  not  be  construed  as  encroaching  upon  the 
rights,  which  are  due  each  spouse  according  to  chapter  13,  paragraph  4. 

Par.  2T,.  The  provisions  of  paragraphs  15-20  as  to  cases  where  the 
spouses  have  gained  separation  or  where  a  petition  for  separation  has  been 
made,  shall  have  corresponding  appUcation  when  divorce  has  been  decreed 
or  a  petition  for  divorce  made,  unless  the  spouses  have  no  marital  property 
due  to  pre-nuptial  or  post-nuptial  agreements,  separation  of  property,  or 
separation. 

If  a  spouse  gains  separation  on  account  of  circumstances,  which  in- 
volve great  wrongs  inflicted  by  the  other  or  on  the  ground  of  the  latter's 
misuse  of  intoxicants,  the  provisions  of  paragraph  22  shall  be  correspond- 
ingly applied. 

Par.  24.  If  divorce  is  granted  due  to  actions  of  a  spouse  by  which  he 
has  seriously  wronged  the  other,  or  after  separation,  obtained  on  the 
ground  that  a  spouse  has  seriously  neglected  his  duties  toward  the  other, 
the  latter  shall  be  awarded  reasonable  damages  in  line  with  the  financial 
condition  of  the  spouses  and  other  circumstances. 

Damages  may  be  ordered  paid  in  a  lump  sum  or  in  installments. 

If  demands  for  damages  are  not  made  during  the  divorce  proceedings, 
the  right  to  claim  the  same  shall  be  forfeited  unless  it  is  merely  a  ques- 
tion of  adjusting  an  agreement  between  the  spouses  entered  into  in  view 
of  the  divorce. 

Par.  25.  Even  though  divorce  has  been  granted,  it  is  incumbent  upon 
a  spouse  to  contribute  to  the  other's  support,  on  grounds  stated  in  chapter 
5,  paragraph  2.  But  if  one  of  them  is  chiefly  responsible  for  the  divorce, 
the  other  shall  not  be  in  dutj'  bound  to  give  him  support  unless  special  cir- 
cumstances demand  it. 

Par.  26.  If  a  divorce  has  been  granted  and  one  of  the  spouses  is  later 
found  to  be  in  need  of  the  necessities  of  life,  the  court  may  order  the 
other  to  contribute  to  the  former's  support,  according  to  his  ability  and 
other  circumstances  to  be  considered.  Such  contributory  support  shall 
not,  however,  be  granted  a  spouse  who  was  the  chief  cause  of  the  divorce. 
If  the  financial  and  other  circumstances  of  the  one  responsible  for  the 
support  warrant  it,  the  contribution  may  be  set  at  a  definite  amount,  which 
shall  be  paid  by  him  at  once.  If  the  contribution  is  ordered  paid  at  defi- 
nite intervals  and  the  one  entitled  to  it  enters  into  a  new  marriage,  no 
further  payment  need  be  made. 

The  demand  for  contributory  support  for  a  divorced  spouse  shall  be 
made  in  the  divorce  suit,  or  the  right  to  claim  same  shall  be  forfeited, 
unless  it  is  merely  a  question  of  adjusting  agreements  between  the  spouses 
made  with  reference  to  the  divorce. 

Par.  27.  In  suits  for  divorce  or  separation,  the  duty  of  the  court  to 
decide  which  spouse  shall  be  given  the  care  of  the  children  and  how  the 
contributions  to  their  support  shall  be  made  is  governed  by  the  Law  of 
Children  in  Marriage. 


140  Marriage  and  Divorce 

Par.  28.  Without  hindrance  of  what  a  court  has  previously  decided  in 
regard  to  contributive  support  for  a  spouse,  the  court  may,  on  the  peti- 
tion of  either  spouse,  revise  the  arrangements  if  circumstances  demand  it. 
Contributive  support  for  a  divorced  spouse  shall,  however,  not  be  granted 
by  the  court,  if  the  petition  has  once  been  refused,  nor  shall  it  be  raised 
above  a  previously  settled  amount.* 

The  provisions  of  this  paragraph  shall  not  be  applied  if  a  spouse  has 
been  obliged  to  pay  at  one  time  a  definite  amount  for  the  support  of  his 
divorced  spouse. 

Par.  29.  If  an  agreement,  which  the  spouses,  in  anticipation  of  the 
divorce  or  the  separation,  have  entered  into  in  regard  to  separation  of 
property  or  anything  connected  therewith,  damages,  or  contribution  to 
the  support  of  a  spouse,  is  patently  unjust  to  one  of  them,  it  may,  unless 
made  during  the  separation,  be  adjusted  by  the  court  on  the  petition  of  the 
injured  spouse.  On  pain  of  forfeiting  the  right  to  claim,  such  petition 
shall  be  made  before  or  in  the  divorce  suit,  if  divorce  is  granted  in  accord- 
ance with  paragraph  3,  but  otherwise  within  a  year  from  the  date  of  the 
divorce  decree. 

Par.  30.  If  spouses,  who  have  won  separation,  cohabit  together  again, 
the  effect  of  the  separation  is  lost,  except  as  to  matters  discussed  in  para- 
graphs 14-20. 

Par.  31.  After  divorce,  a  wife  may  retain  her  husband's  name  or  take 
her  maiden  name. 

CHAPTER  12. 
Certain  Provisions  with  Reference  to  the  Dissolution  of  a  Marriage 

THROUGH   THE   DeATH   OF   A    SpOUSE 

Par.  I.  upon  the  death  of  a  spouse  the  property  shall  be  divided  un- 
less neither  spouse  has  marital  property  due  to  pre-  or  post-nuptial  agree- 
ment, separation  of  property,  or  separation. 

Par.  2.  Unless  the  surviving  spouse  and  the  heirs  of  the  deceased 
agree  to  the  division  of  the  property  or  the  property  of  the  deceased  has 
been  surrendered  to  the  creditors,  no  division  shall  be  made  until  all 
known  debts  of  the  deceased  have  been  paid  or  means  for  their  payment 
have  been  placed  under  a  special  administrator. 

Par.  3.  Until  the  division  of  the  property  is  made,  the  administration 
of  the  estate  of  the  deceased  shall  be  in  the  hands  of  the  surviving  spouse 
and  the  heirs  of  the  deceased  jointly,  subject  to  what  has  been  specially 
provided  with  reference  to  this  administration. 

Par.  4.  Unless  it  is  otherwise  provided  in  paragraph  5,  the  surviving 
spouse  may  control  the  marital  property  which  belonged  to  him  at  the 
other's  death.  When  the  division  is  made,  he  shall  be  in  duty  bound  to 
give  an  accounting  of  his  management  of  this  property  and  the  income  it 
has  yielded. 

Par.  5.  If  the  heirs  of  the  deceased  demand  it  and  it  is  found  neces- 
sary for  the  protection  of  their  rights,  marital  property,  which  the  sur- 
viving spouse  may  control  according  to  paragraph  4,  shall,  to  the  value 
of  the  amount  of  such  property  which  might  be  assumed  to  fall  to  the 
heirs  at  the  division,  be  placed  under  special  management  until  the  divi- 
sion has  been  made.  This  shall  not  be  done  if  the  surviving  spouse  enters 
a  protest  and  gives  security,  approved  by  the  court,  for  the  amount  of  the 
property,  which  should  fall  to  the  heirs  at  the  division. 

*This  last  provision  refers  to  condition  in  paragraph  26,  when  support 
has  been  granted  once  for  all  and  paid  in  a  lump  sum. 


Legislation  in  Szveden  141 

When  the  above  arrangement  is  made,  more  definite  provisions  may 
also  be  made  regarding  the  use  of  the  property  or  its  income  for  the  sup- 
port of  the  children  and  the  surviving  spouse  or  for  other  necessary  ex- 
penses. 

Par.  6.  Marital  property,  which  a  surviving  spouse  may  control  ac- 
cording to  paragraph  4,  may  be  seized  for  his  debts  regardless  of  the 
death  of  the  other  spouse.  If  such  property  has,  according  to  paragraph 
5,  been  placed  under  special  management,  it  shall  not  be  seized  for  debts 
owed  by  the  surviving  spouse  unless  the  deceased  was  jointly  liable  with 
him  for  the  debt  or  the  property  was  security  for  the  payment  of  the  debt 
by  means  of  a  mortgage  or  otherwise. 

Par.  7.  If,  before  the  division  is  made,  the  property  of  either  spouse 
has  been  surrendered  in  bankruptcy  or  if  the  division  has  been  annulled 
because  of  bankruptcy,  marital  property,  which  at  the  time  of  the  death 
belonged  to  the  debtor  spouse,  shall  be  managed  by  the  receiver,  until 
the  division  of  the  property  has  shown  what  shall  be  given  to  the  estate 
in  bankruptcy.     If  it  is  found  necessary,  the  receiver  may  sell  the  property. 

The  arrangement  mentioned  in  paragraph  5  shall,  in  case  of  bank- 
ruptcy, be  null  and  void. 

CHAPTER  13. 
The  Division  of  the  Property 

Par.  I.  Division  of  the  property,  which  must  take  place  as  a  result  of 
separation  of  property,  annulment  of  the  marriage,  separation,  divorce, 
or  the  death  of  one  spouse,  shall  be  made  in  the  manner  prescribed  in  the 
Law  of  Inheritance  regarding  the  Division  of  Inheritance,  and  also  sub- 
ject to  the  provisions  of  this  chapter. 

The  provisions  of  this  chapter  with  reference  to  a  spouse,  shall,  in 
case  he  is  dead,  be  applied  to  his  heirs,  unless  otherwise  stated. 

Par.  2.  If  a  spouse  owes  a  debt,  which  was  incurred  before  the  peti- 
tion for  separation  of  property  was  made,  before  the  annulment  of  the 
marriage,  the  separation,  or  the  divorce  was  decreed,  or,  if  division  is 
made  as  a  result  of  the  death  of  a  spouse,  before  said  death,  property 
shall  be  taken  from  the  marital  property  of  the  debtor  spouse  and  given 
to  the  other  for  the  payment  of  the  debt  or  for  the  payment  of  that  share 
in  the  debt,  which  has  fallen  to  him,  in  case  the  debt  was  jointly  owed  by 
the  spouses. 

If  the  debt  was  made  before  the  marriage  and  was,  at  the  time  of  the 
marriage,  secured  by  mortgage  or  in  some  other  way  by  private  property 
or  property  referred  to  in  chapter  6,  paragraph  i,  section  2,  v.hich 
property  does  not  enter  into  the  division ;  or,  if  a  spouse  has  during  the 
marriage  incurred  the  debt  due  to  mismanagement  of  his  economic  affairs 
or  due  to  other  improper  conduct  or  for  the  increase  or  gain  of  property  of 
the  nature  just  mentioned,  the  allotment  mentioned  in  section  one  of  this 
paragraph  shall  be  made  only  for  that  part  of  the  debt,  which  cannot  be 
satisfied  with   such  property. 

Par.  3.  When  an  allotment  for  debt  has  been  made,  according  to 
paragraph  2,  the  remainder  of  the  marital  property  of  the  spouses  shall  be 
equally  divided  between  them,  unless  it  is  otherwise  understood  from 
chapter  6,  paragraph  7;  chapter  7,  paragraphs  5  or  9;  chapter  11,  para- 
graph 22  or  paragraph  23,  section  two;  or,  this  chapter,  paragraphs  4-12. 

Par.  4.  Each  spouse  or,  if  one  is  dead,  the  survivor  may  have  ex- 
empted from  the  division  belongings,  such  as  clothing  and  other  things 
which  are  exclusively  for  his  own  personal  use.     This  exempted  propertv 


142  Marriage  and  Divorce 

must  not  be  greater  in  value  than  may  be  considered  reasonable  con- 
sidering the  status  in  life  of  the  spouses. 

Par.  5.  If  a  spouse  has  been  given  marital  property  to  satisfy  a  debt, 
as  mentioned  in  paragraph  2,  section  2,  the  other  may  receive  compensa- 
tion for  it  out  of  their  marital  property. 

Par.  6.  If  a  spouse  has  by  mismanagement  of  his  economic  affairs, 
by  abusing  his  right  to  control  his  marital  propert}',  or  by  other  improper 
conduct  caused  a  considerable  decrease  in  such  property,  the  other  may 
receive  compensation  out  of  his  marital  property.  If  this  does  not  suffice 
and  if  the  one  responsible  for  the  compensation  has  private  property, 
compensation  for  half  of  the  balance  shall  be  made  out  of  such  private 
property  not  needed  for  the  satisfaction  of  debts. 

Par.  7.  A  spouse  shall  also  have  a  right  to  compensation,  as  men- 
tioned in  paragraph  6,  if  the  other  has  used  his  marital  property  for  the 
gain  or  the  increase  of  his  own  private  property  or  of  property  referred  to 
in  chapter  6,  paragraph  one,  section  one,  neither  of  which  is  affected  by 
a  division,  or  for  the  payment  of  debts  incurred  before  the  marriage  and 
of  the  nature  mentioned   in  paragraph  2,   section  two. 

Par.  8.  A  spouse,  who  has  used  his  private  property  to  increase  his 
marital  property,  may  receive  compensation  out  of  the  latter. 

Par.  9.  If  compensation  due  a  spouse  can  not  be  paid  in  full,  he  can 
not  demand  the  balance  from  the  other. 

Par.  10.  Damages  which,  according  to  chapter  10,  paragraphs  6  or  10 
or  chapter  11,  paragraph  24,  are  due  a  spouse  shall,  if  the  payment  is  past 
due,  be  paid  at  the  division  of  the  property  out  of  the  other's  share  over 
and  above  the  property  needed  to  pay  debts  encumbering  it.  The  same 
rule  shall  hold  in  case  of  past  due  contributions  for  support,  which  shall 
be  paid  by  a  spouse  to  the  other  at  one  time,  according  to  chapter  11, 
paragraph  26. 

Par.  II.  If  the  spouses  are  jointly  liable  for  a  debt  of  the  nature  re- 
ferred to  in  paragraph  2,  each  may  demand  that  the  other  pay  the  part  of 
the  debt  which  falls  to  his  share,  unless  security  for  its  payment  is  given. 
If  that  is  not  done  and  if  the  one,  who  demanded  it,  desires  it  and  gives 
security  for  the  payment  of  the  debt,  property  to  satisfy  that  part  of  the 
debt  shall,  at  the  division  of  the  estate,  be  allotted  to  him  from  the  other's 
share  over  and  above  property  needed  to  satisfy  other  debts.  In  such 
case,  the  former  shall  be  alone  liable  for  the  payment  of  the  debt  in  ques- 
tion. 

Par.  12.  If  division  of  the  property  occurs  as  a  result  of  the  death  of 
a  spouse  and  the  property  falling  to  the  lot  of  the  survivor  is  slight,  he 
may  withdraw,  from  the  marital  property  of  the  spouses,  necessary  house- 
hold goods,  tools,  and  chattels  needed  for  the  pursuit  of  his  occupation. 
This  he  can  do,  even  though  the  share  of  the  heirs  may  suffer  a  decrease 
thereby. 

Par.  13.  When  the  division  is  made,  each  spouse  or,  if  one  is  dead, 
the  survivor  has  the  right  to  receive  in  his  share  the  work  tools  and  other 
chattels  needed  for  the  pursuit  of  his  occupation.  In  addition,  each 
spouse  is  entitled  to  receive  in  his  share  whatever  property  he  desires, 
if  this  property  is  part  of  his  marital  property.  Real  estate  belonging  to 
the  marital  property  of  a  spouse,  as  well  as  other  propert.v  belonging  to 
his  marital  property,  shall  be  given  to  him  if  he  so  desires.  This  may  be 
done  even  though  the  property  may  exceed  in  value  the  share  due  him  as 
long  as  he  substitutes  for  it  money  to  complete  the  other's  share. 

If  the  private  property  of  a  spouse  is  to  be  used  to  pay  compensa- 
tion, as  stated  in  paragraphs  6  or  7,  the  compensation  shall  be  paid  in  prop- 
erty which  the  payer  may  designate. 


Legislation  in  Szvcdcn  143 

The  right  mentioned  in  the  last  part  of  section  one  shall  not,  if  a 
spouse  is  dead,  belong  to  any  one  but  direct  heirs  and  even  so  only  with 
reference  to  real  estate  which  the  deceased  has  acquired  from  a  relative 
in  lineal  ascent  or  descent  or  from  the  estate  of  a  deceased  relative  in 
lineal  ascent  or  descent. 

Par.  14.  If,  at  the  division  of  the  property,  a  spouse  has  relinquished 
what  would  fall  to  his  share,  according  to  this  chapter,  and  cannot  pay 
a  debt  incurred  before  the  division,  the  other  shall  be  liable  for  its  pay- 
ment to  the  amount  of  the  surplus  he  has  received  unless  he  can  prove 
that  the  debtor  spouse  had  enough  property  left  after  the  division  to 
satisfy  his  debt.  If  the  spouse,  who  relinquished  his  right,  has  been  de- 
clared bankrupt  or  has,  in  an  execution,  been  found  to  lack  funds  to  pay 
his  debt;  or,  if  he,  being  a  merchant,  has  stopped  payments;  or,  if  he  is 
found  to  be  in  such  a  precarious  position  that  it  may  be  assumed  that  a 
debt  of  the  nature  mentioned  in  the  first  sentence  will  not  be  paid,  the 
other  spouse  shall  be  liable  for  the  debt  to  the  value  mentioned  in  that 
sentence,  even  though  the  former's  condition  is  not  clearly  ascertained. 

If  division  of  the  property  has  been  made  between  a  spouse  and  the 
other's  heirs  and  if  the  latter  have  received  too  much,  they  shall  be  jointly 
responsible  for  repayment,  as  explained  in  the  previous  section. 

The  provisions  of  this  paragraph  shall  not  be  applied  with  reference 
to  debts  for  which  the  deceased  spouse  was  liable,  if  division  takes  place 
following  his   death. 

Par.  15.  When  division  of  property  has  been  made,  the  spouse  shall 
present  to  the  court  the  document  prepared.  A  report  of  the  matter,  with 
the  date  of  the  presentation  shall  also  be  made  immediately  to  the  Mar- 
riage Registry  and  a  notice  inserted  in  the  general  and  local  newspapers. 
If  a  spouse  has,  at  the  division  of  the  property,  relinquished  his  rights  to 
an  extra-ordinary  degree  and  if  his  property  is  surrendered  to  his  credi- 
tors as  a  result  of  a  petition  made  within  a  year  from  the  presentation  of 
the  document  above  mentioned  to  the  court,  the  division  shall  be  annulled 
in  accordance  with  the  Bankruptcy  Law,  if  the  creditors  demand  it. 

The  provision  in  the  second  part  of  the  above  section  shall  not  apply, 
when  a  spouse  is  dead  and  the  relinquishment  has  been  made  by  his  heirs. 

CHAPTER    14. 

Mediation  Between  Husband  and  Wife 

Par.  I.  In  cases  referred  to  in  chapter  li,  paragraph  2,  section  one; 
or,  if  discord  has  in  other  ways  arisen  between  husband  and  v.'ife;  or,  if 
there  arises  between  them  a  quarrel  regarding  the  duty  of  support  or  about 
questions  referred  to  in  chapter  8,  paragraphs  6  or  7,  a  spouse  has  the 
right  to  ask  for  mediation  by  the  minister  of  the  parish  wherein  either 
spouse  is  registered,  by  a  minister  of  a  congregation  which  has  a  right 
to  public  worship  and  to  which  either  spouse  belongs,  by  a  person,  who 
on  petition  has  been  appointed  by  the  county  judge  or  the  president  judge 
of  the  municipal  court  in  the  place  wherein  both  or  one  of  the  spouses 
resides,  or  by  a  person,  referred  to  in  paragraph  2,  who  has  been  appointed 
to  act  as  mediator  in  domestic  difficulties  in  the  community  wherein  one 
or  both  reside. 

Par.  2.  If  the  community  has  decided  to  appoint  mediators  in  domes- 
tic difficulties,  or  if  a  need  for  such  mediators  becomes  apparent,  the 
parish  council  in  the  country-side,  the  Governor  General  of  Stockholm, 
and  the  Board  of  Magistrates  in  other  cities,  or  the  city  government, 
where  no  magistrates  are  found,  shall  appoint  as  mediators  at  least  one 


144  Marriage  and  Divorce 

man  and  one  woman.  Mediators  shall  be  appointed  for  two  calendar 
years.  If  a  mediator  resigns  before  his  term  expires,  another  shall  be 
appointed  to  fill  the  vacancy. 

Par.  3.  A  mediator  has  the  right  to  summon  the  spouses  to  appear 
before  him.  In  a  suitable  manner  he  shall  try  to  discover  the  cause  of  the 
dissension  or  the  quarrel  and  try  to  effect  reconciliation. 

CHAPTER  15. 

Certain  Provisions  Regarding  Court  Procedure 
Marriage  Suits 

Par.  I.  A  marriage  suit  is  a  suit  arising  out  of  a  dispute  as  to  whether 
or  not  a  man  and  a  woman  are  really  married,  or  a  suit  for  annulment, 
separation,  or  divorce. 

Par.  2.  The  question  of  whether  or  not  two  persons  are  actually 
married  shall  not  be  the  subject  of  a  special  suit  unless  a  dispute  arises 
between  them  regarding  the  matter.  Whenever  any  one's  right  is  affected 
by  a  settlement  of  this  question,  it  may  be  investigated. 

Par.  3.  In  marriage  suits,  a  feebleminded  or  an  insane  person  shall 
be  represented  by  his  guardian. 

Par.  4.  Marriage  suits  shall  be  brought  in  the  court  of  the  place, 
wherein  the  defendant  resides.  If  he  does  not  reside  within  the  Kingdom, 
the  court  of  the  place  wherein  the  man  and  woman  last  had  their  resi- 
dence together  or,  if  they  have  had  no  joint  residence  in  the  Kingdom, 
wherein  the  plaintiff  resides,  shall  have  jurisdiction.  If  the  suit  is  brought 
against  the  man  and  woman  jointly,  the  court  of  the  place  wherein  both 
or  either  lives,  or,  if  neither  lives  in  the  Kingdom,  where  their  last  joint 
residence  in  the  Kingdom  was  ,  shall  have  jurisdiction.  If  no  court,  in  ac- 
cordance with  the  above,  has  jurisdiction,  the  Magistrates'  Court  in  Stock- 
holm shall  hear  the  case. 

If  both  spouses  desire  separation,  according  to  chapter  11,  paragraph 
one,  or  divorce,  according  to  chapter  il,  paragraphs  3  or  4,  they  shall 
petition  the  court,  which  in  accordance  with  the  first  section  has  jurisdic- 
tion in  suits  against  them  jointly. 

A  suit  for  annulment  or  divorce  on  the  ground  of  a  crime,  for  which 
conviction  has  been  sought,  may  also  be  brought  in  the  court,  where  the 
criminal  suit  is  pending. 

Par.  5.  If  the  defendant  has  no  known  residence  in  the  Kingdom  and 
if  no  information  of  his  whereabouts  has  been  found,  the  summons  may 
be  served  in  the  manner  specified  in  chapter  11,  paragraph  9,  section  two 
of  the  Law  of  Court  Procedure,  even  though  the  situation  is  not  one  re- 
ferred to  in  that  paragraph. 

This  shall  not  apply,  if  the  defendant  has  given  notice  in  accordance 
with  the  provisions  made  in  sections  three  and  four  of  said  paragraph. 

Par.  6.  If  either  party  to  the  marriage  suit  desires  it,  the  court  may 
order  the  hearing  to  be  held  behind  closed  doors. 

Par.  7.  If  a  defendant,  upon  being  properly  summoned,  remains  away 
without  showing  legal  cause,  the  court  may,  nevertheless  decide  the  case. 
If  the  suit  is  thus  decided,  the  provisions  of  the  Law  of  Court  Procedure, 
chapter  12,  paragraphs  3-4,  regarding  rehearing  shall  in  no  case  be  applied. 

Par.  8.  A  suit  for  separation,  according  to  chapter  II,  paragraph  one, 
shall  not  be  heard  until  it  has  been  shown  that  mediation  has  taken  place 
in  accordance  with  chapter  14. 

A  suit  for  separation,  according  to  chapter  11,  paragraph  2,  shall  not 


Legislation  in  Sweden  145 

be  heard  unless  it  is  shown  that  mediation  has  taken  place,  that  the  de- 
fendant upon  being  summoned  has  failed  to  appear  for  mediation,  or 
that  he  could  not  be  located.  If  the  suit  is  to  be  heard  although  media- 
tion has  not  taken  place  and  the  court  finds  that  opportunity  for  mediation 
should  be  provided,  the  hearing  shall  be  postponed  and  a  suitable  person 
appointed  by  the  court  as  mediator  with  powers  as  provided  in  chapter  14, 
paragraph  3.  If  a  spouse  fails  to  answer  a  summons  to  appear  before  this 
mediator  or  if,  for  some  other  reason,  mediation  has  not  taken  place  be- 
fore the  date  of  the  postponed  hearing,  no  further  postponement  shall  be 
made  unless  both  spouses  desire  it. 

Par.  9.  The  court  is  responsible  for  a  complete  investigation  and  may 
for  that  purpose  secure  necessary  evidence.  The  mere  admission  of  a 
circumstance  by  a  party  shall  not  be  valid  unless  supported  by  other  evi- 
dence.    No  oath  shall  be  administered. 

That  which  is  here  stated  shall  not  be  applied  to  special  matters,  in 
connection  with  the  main  case,  regarding  which  the  spouses  can  enter 
agreements. 

If  the  court  has  summoned  a  party  to  appear  in  person  and  he  fails 
to  do  so,  he  may  be  taken  into  court,  if  it  is  found  suitable. 

If  the  court  has  subpoenaed  a  person  as  witness,  the  provisions  of  the 
Criminal  Law  shall  hold,  as  to  the  compensation  of  witnesses  from  public 
funds  and  its  repayment  in  suitable  parts. 

Par.  10.  Annulment  or  divorce  shall  not  be  granted  on  the  ground  of 
insanity  or  feeblemindedness  unless  a  medical  certificate  regarding  the  ill- 
ness has  been  presented.  The  King  is  empowered  to  prescribe  further 
regulations  regarding  this  certificate. 

Par.  II.  In  suits  for  annulment,  separation,  or  divorce,  the  court  may, 
on  petition  of  either  spouse  and  in  accordance  with  what  is  found  reason- 
able, declare  that,  until  a  decree  with  full  legal  power  is  issued,  the 
spouses  shall  live  apart.  The  court  may  also  order  a  spouse  to  contribute 
to  the  other's  support  in  the  meanwhile  and  may  forbid  them  to  visit  each 
other  on  pain  of  imprisonment  or  a  fine. 

When  bidding  the  spouses  to  live  apart,  the  court  may  decide  which 
spouse  shall  remain  in  the  home.  The  one  chosen  is  allowed  to  retain 
and  use  the  other's  chattels,  which  form  a  part  of  the  household  goods, 
unless  the  court  makes  other  arrangements.  Such  decision  shall  remain 
in  force  until  the  division  of  the  property  takes  place,  in  case  a  decree  of 
annulment,  separation,  or  divorce  is  issued.  The  provisions  of  chapter 
5,  paragraph  8,  shall  hold  as  to  the  right  to  use  property  belonging  to  a 
spouse,  when  the  other  has  received  such  property,  according  to  what  has 
just  been  said. 

If  the  writ  has  been  served  in  the  country  (i.  e.  the  countryside)  but 
the  suit  has  not  come  before  the  court,  the  judge  may  issue  the  above 
mentioned  order  on  the  plaintiff's  petition.  Before  this  order  is  issued, 
the  defendant  shall  be  given  an  opportunity  to  be  heard  on  the  petition. 
If  the  order  has  been  given,  the  court  shall,  at  the  first  opportunity  during 
the  hearing  of  the  case,  take  the  continuation  of  the  order  under  consid- 
eration. 

The  decision  mentioned  in  this  paragraph  shall  have  the  same  legal 
effect  as  a  court  decree  but  it  can  at  any  time  be  rescinded  by  the  court. 

Par.  12.  When  a  separation  decree  is  issued,  the  court  may  on  the 
petition  of  a  spouse  make  the  prohibition  mentioned  in  paragraph  11,  sec- 
tion one,  for  any  period  of  time  found  advisable. 

Par.  13.  If,  in  annulment,  separation,  or  divorce  suits,  it  is  found 
that  the  consideration  of  special  problems  arising  in  connection  with  the 


146  Marriage  and  Divorce 

main  question  will  lead  to  a  considerable  extension  of  time,  the  court  may, 
on  the  demand  of  either  party  to  the  suit,  take  up  the  rest  of  the  case  for 
final  decision. 

Par.  14.  In  the  lower  court  a  record  shall  be  kept  of  all  separation 
suits  pending  there,  setting  forth  the  measures  taken  and  all  court  deci- 
sions affecting  the  estate  in  each  separate  suit. 

When  separation  has  been  granted,  a  notice  shall  immediately  be  sent 
to  the  Marriage  Registry. 

Separation  of  Property  Suits 

Par.  15.  A  petition  for  the  separation  of  property  shall  be  made  in 
writing  to  the  court  in  the  town  or  to  the  judge  of  the  country  district 
where  the  man  should  answer  in  all  disputes  regarding  his  person  or,  if 
the  man  is  not  in  duty  bound  to  appear  in  such  suits  before  a  Swedish 
court,  to  the  court  or  to  the  judge,  before  whom  the  woman  should  ap- 
pear in  such  suits.  If  no  court  with  jurisdiction  exists,  according  to  what 
has  just  been  said,  the  suit  shall  be  heard  in  the  Magistrates'  Court  in 
Stockholm. 

If  there  is  no  court  day  in  the  town  and  if  there  is  no  one  appointed 
by  the  court  to  receive  petitions  in  its  name,  the  petitions  may  be  given  to 
the  president  of  the  court. 

Par.  16.  If  the  court  or  the  judge  finds  that  a  petition  for  separation 
of  property  can  not  be  considered  because  it  is  directed  to  the  wrong 
court,  or  for  some  other  reason,  this  decision  shall  be  noted  on  the  peti- 
tion. 

Par.  17.  If  the  petition  has  been  made  by  both  spouses  and  there  is 
no  hindrance  to  its  consideration,  the  court  or  the  judge  shall  immediately 
render  the  decision  of  separation  of  property,  unless  a  postponement  is 
made  in  accordance  with  paragraph  20. 

Par.  18.  If  the  petition  for  separation  of  property  is  made  by  one 
spouse  alone,  the  court  or  the  judge  shall  note  on  the  petition  a  summons 
to  the  spouses  to  appear  before  the  court  within  eight  days,  if  in  the  town, 
and,  if  in  the  country,  on  a  specified  day  of  the  current  or  next  ordinary 
session  of  the  court  or  of  the  special  session,  if  that  is  asked. 

The  petitioner  shall  take  care  that  the  other  is  informed  of  the  sum- 
mons. If  the  latter  is  absent  on  the  day  set  for  the  hearing  and  it  is  not 
shown  that  he  was  informed  of  the  summons  early  enough  to  enable  him 
to  be  present,  or  if  hindrance  has  prevented  the  communication  of  the 
information  mentioned,  the  petition  shall  be  void.  If  several  attempts 
have  been  made  to  give  the  latter  spouse  a  notice  of  the  summons  in  his 
home  and  if  neither  he  nor  his  agent  has  been  found  or  any  information 
gained  as  to  his  whereabouts,  the  court  shall  set  a  date  for  a  further 
hearing  in  the  matter  and  shall  urge  the  spouse  to  appear  before  the 
court  by  inserting  a  notice  in  the  general  newspapers  three  times,  the 
last  time  at  least  one  month  before  the  date  set  for  the  hearing. 

If  the  spouse  does  not  present  himself,  when  the  summons  has  been 
served  in  due  order,  the  suit  for  separation  of  property  shall  nevertheless 
be  taken   up   for  final   consideration. 

Par.  19.  If,  in  the  country,  a  spouse,  who  is  to  be  heard  on  the  peti- 
tion, has  given  the  judge  written  assent  to  it,  the  judge  shall  immediately 
decree  the  separation  of  the  property  unless  postponement  is  made,  ac- 
cording to  paragraph  20.  In  such  cases  the  matter  need  not  be  taken  to 
court. 

Par.  20.  If  a  spouse,  who  has  petitioned  for  separation  of  the  property, 
has  demanded  an  inventory  of  the  property,  according  to  chapter  9,  para- 


Legislation  in  Sweden  147 

graph  9,  before  the  petition  has  been  granted,  and  if  the  petitioner  has 
asked  that  the  decree  be  postponed  until  he  has  had  time  to  read  the  in-, 
ventorj',  the  petition  shall  not  be  granted  until  a  month  after  the  inventory 
was  presented  to  the  spouses,  unless  the  petitioner  presses  his  demands 
before  that  time. 

Par.  21.  When  a  petition  for  separation  of  property  has  been  made 
and  also  when  it  has  been  granted,  a  notice  shall,  through  the  court  or 
the  judge,  be  inserted  in  the  general  and  the  local  newspapers  and  infor- 
mation thereof  sent  to  the  Marriage  Registry. 

Par.  22.  At  each  lower  court  a  record  shall  be  kept  of  all  separation 
of  property  cases  pending  there,  giving  in  each  case  the  day  of  petition, 
all  measures  taken  and  decisions  rendered  by  the  court  or  by  the  judge. 

Special  Stipulations  Regarding  Certain  Other  Suits 

Par.  22,.  What  has  been  provided  in  paragraph  eight,  section  two,  re- 
garding separation  suits,  according  to  chapter  ii,  paragraph  2,  shall  also 
be  applied  in  suits  between  spouses  regarding  duty  of  support,  unless  they 
live  apart  due  to  dissension,  and  in  suits  between  them  regarding  matters 
referred  to  in  chapter  8,  paragraphs  6  or  7. 

Par.  24.  If  a  spouse  has  urged  that  the  other  be  made  to  contribute 
to  the  former's  support  in  accordance  with  chapter  5,  paragraphs  5  or  7, 
or  if,  when  separation  or  divorce  has  been  decreed,  a  spouse  has  urged 
that  the  other  be  made  to  contribute  to  the  former's  support  in  accordance 
with  chapter  li,  paragraphs  25  or  26,  the  court  may,  on  the  petition  of  the 
plaintiff,  rule  that  the  defendant  shall  make  reasonable  contribution  until 
a  decree  with  full  legal  power  is  issued. 

The  court  may  at  any  time  revoke  this  order. 

Par.  25.  If  a  spouse  has,  according  to  chapter  5,  paragraph  8,  de- 
manded that  the  other  deliver  for  the  petitioner's  use  necessary  chattels, 
the  court  may,  on  the  plaintiff's  petition,  order  that  it  be  done  until  a  de- 
cree with  full  legal  power  has  been  issued. 

The  court  may  at  any  time  revoke  an  order  of  this  nature. 

Par.  26.  If,  in  the  country,  a  writ  has  been  served  in  a  matter  referred 
to  in  paragraphs  24  or  25,  and  the  suit  has  not  yet  been  heard  in  court, 
the  judge  may,  on  the  plaintiff's  petition  issue  the  order  referred  to  in  the 
paragraphs  mentioned  to  hold  until  a  decree  with  full  legal  power  has 
been  issued. 

Before  the  order  is  issued,  the  defendant  shall  be  given  an  opportun- 
ity to  be  heard  on  the  plaintiff's  petition. 

If  the  order  has  been  issued,  the  court  shall  at  its  earliest  opportun- 
ity during  the  hearing  of  the  case,  consider  the  advisability  of  continuing 
the  order  in  force. 

The  court  may  even  later  revoke  the  order  at  any  time. 

Par.  27.  The  order  referred  to  in  paragraphs  24,  25,  or  26,  shall  have 
legal  power  equal  to  that  of  a  court  decree. 

Par.  28.  If  a  spouse  or  his  heir  wants  property  placed  under  special 
control,  according  to  what  is  stated  in  chapter  9,  paragraph  6,  chapter  11, 
paragraphs  17  or  2},,  or  chapter  12,  paragraph  5,  he  shall  petition  the  court. 
If,  in  the  country,  such  a  petition  has  been  made  to  the  judge,  he  may, 
upon  the  petitioner's  demand,  issue  an  order  which  shall  have  legal  power 
until  the  court  takes  the  matter  under  consideration,  when  the  case  comes 
up  for  decision. 

Before  such  an  order  is  issued,  the  other  spouse  shall,  through  the 
efforts  of  the  court  or  the  judge,  be  giv^en  an  opportunity  to  be  heard  on 
the   petition. 


148  Marriage  and  Divorce 

In  spite  of  objections  made,  the  order  shall  go  into  effect,  unless  the 
Appellate  Court  issues  a  restraining  writ. 

Par.  29.  A  measure,  which  a  country  judge  is  called  upon  to  take,  ac- 
cording to  chapter  9,  paragraph  9,  chapter  11,  paragraphs  20  or  23,  or  this 
chapter,  paragraphs  16-19,  or  paragraph  28,  section  2,  may  be  taken  by 
him  even  though  he  is  legally  disqualified.  In  such  case,  however,  he 
shall  immediately  inform  the  Appellate  Court  of  his  incompetency,  if  the 
appointment  of  a  special  judge  is  necessary. 

Par.  30.  Complaint  as  to  the  final  decree  in  suits  discussed  in  this 
chapter,  shall  be  made  in  the  nature  of  an  appeal,  even  though  the  suit 
may  be  one,  which  must  be  instituted  by  a  writ. 

Par.  31.  If  a  party  is  dissatisfied  with  the  decision  rendered  by  the 
court  in  questions  referred  to  in  chapter  9,  paragraphs  6  or  9,  chapter  li, 
paragraphs  20  or  23,  or  this  chapter,  paragraphs  11,  24-26,  a  special  appeal 
may  be  taken. 

Par.  32.  If  a  country  judge  has  issued  an  order,  which  he  is  author- 
ized to  do,  according  to  this  act,  appeal  may  be  made  to  the  Appellate 
Court.  The  time  given  for  the  filing  of  an  appeal  shall  be  computed  from 
the  date  the  petitioner  received  knowledge  of  the  order. 

Par.  32.  The  decision  of  the  Appellate  Court  in  questions  referred  to 
in  paragraphs  31  or  2^  cannot  be  appealed. 

CHAPTER   16. 

General  Rules 

Par.  I.  When,  according  to  this  act,  time  is  to  be  counted  in  months 
and  years,  that  day  shall  be  considered  the  final  day,  which  by  its  number 
corresponds  to  the  day  from  which  the  time  is  counted.  If  there  is  no 
corresponding  day  in  the  final  month,  the  last  day  of  that  month  shall  be 
considered  the  final  day. 

Par.  2.  Records  of  entrance  into  marriage  and  dissolution  of  mar- 
riage shall  be  made  in  the  Parish  register,  according  to  stipulations  made 
by  the  King. 

Par.  3.  A  central  authority  for  the  whole  Kingdom  shall  have  charge 
of  the  Marriage  Registry,  for  the  recording  of  the  information,  which, 
according  to  this  law,  shall  be  reported  for  registration  or  for  the  record- 
ing of  any  information  hereafter  ordered  reported  for  this  purpose. 

Par.  4.  A  collection  of  the  information  recorded  in  the  Marriage 
Registry  shall  be  printed  by  the  government  periodically  and  supplied 
with  an  annual  index. 

As  the  collection  comes  from  the  press  it  shall  be  sent  to  every  court 
and  local  administrator  of  justice,  where  it  shall  be  available  to  the  public. 

Par.  5.  More  definite  rules  regarding  the  conduct  of  the  Marriage 
Registry  and  the  collection  mentioned  in  paragraph  4  shall  be  made  by 
the  King. 

Par.  6.  As  to  certain  international  questions  regarding  marriage, 
special  rules  have  been  prepared. 

June  II,  1920. 


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University  of  California 
Richmond,  CA  94804-4698 

ALL  BOOKS  MAY  BE  RECALLED  AFTER  7  DAYS 

•  2-month  loans  may  be  renewed  by  calling 
(510)642-6753 

•  1-year  loans  may  be  recharged  by  bringing 
books  to  NRLF 

•  Renewals  and  recharges  may  be  made 
4  days  prior  to  due  date 

DUE  AS  STAMPED  BELOW 


OCT  1 1  2002 


DD20   15M   4-02 


1 


Si 


